In-Home Separation in Virginia
Virginia law allows for no-fault divorce on the grounds of (a) living “separate and apart” for one year or (b) living separate and apart for six months with a separation agreement in place and no minor children.
But what does it mean to live “separate and apart” for this purpose? The most effective and certain way of proving separation is by one party moving out and living in a separate home, but the Virginia Court of Appeals has recognized that this is not always financially feasible, and therefore has held that spouses may live separate and apart under the same roof for their separation period. However, spouses seeking to establish a separation need to be very deliberate in how they live their daily lives to show that they are truly separated.
In Bchara v. Bchara (2002), after a wife found a videotape of her husband having sex with another woman, she then moved all of his belongings into another bedroom, and they stopped having sex. The wife also asked her husband repeatedly to move out of the house, no longer deposited funds into the parties’ joint bank accounts, and she ceased attending church and other family functions with her husband. She had a corroborating witness visit the house once a week, who later testified that the parties were no longer living as a married couple. The husband argued that the parties were still cohabiting, as the wife continued to buy groceries, cook, and clean. However, the Court of Appeals found these facts alone were insufficient to prove that the parties were cohabiting.
Contrast this with Catalano v. Catalano (2005), where a wife who wished for a divorce moved out of the marital bedroom upon learning that her husband had begun separating their finances. Although the parties told a few individuals that they were separated, they continued to host and attend family gatherings with each other and attend church services together. They also ate together and went out to dinner together weekly while the wife continued to do the couple’s laundry. This was sufficient for the court to find that the couple was not separated on the date that the husband alleged, but rather remained together for another year.
What anyone considering divorce should take away from these varied rulings is that in Virginia, separation is more than mere physical separation. When parties are living separately under the same roof, a court will look very closely at the parties’ behavior to determine whether or not they are truly separated. Whether or not a court finds a couple to be separated is a highly fact-based inquiry that will consider how that parties behave within the home. If one party is in denial that the separation is occurring or disagrees with the date of separation, it adds another level of complexity to the case, which underscores the importance of deliberately considering courses of action.
Guidelines for In-Home Separation
While there is no single required factor or “magic bullet” that will convince a court that two parties living under the same roof are indeed separated, there is a wide range of behaviors that parties should consider to establish that fact. It is important to create as many indicia of separation as possible so that a court has enough corroborating evidence to find that parties are separated, even if they are still living under the same roof. Here are several steps to consider:
- The parties need to be aware that at least one spouse has the intent to end the marriage, and this intent must remain throughout the separation. It is best to document this by stating the intention to permanently end the marriage (as of a certain date) in writing.
- The parties should stop having sex, and should sleep and keep their belongings in separate bedrooms (and use different bathrooms, ideally).
- They should stop holding themselves out as a married couple, both inside and outside the residence, which includes no longer wearing their wedding rings.
- They should stop attending gatherings, vacations, or social functions together.
- They should not give each other rides or otherwise facilitate transportation for each other.
- The parties should stop accomplishing day-to-day tasks for one another, whether that be grocery shopping, cleaning, cooking, and doing laundry. This even goes so far as for each party to have their own food in the refrigerator.
- The parties should tell family and friends of their separation.
- Although not a requirement if enough corroborating evidence of another kind is available, having witnesses in the form of friends, family or co-workers who can testify that the parties have been living separately, albeit under the same roof, can be among the most persuasive pieces of evidence to a court.
- The parties should not celebrate holidays together, and should not exchange gifts on birthdays, anniversaries, or holidays.
- If possible, the parties should establish separate bank accounts and separate their finances.
The purpose behind these suggestions is to ensure that the parties are no longer deriving benefits from living with their significant other, as would a married couple. For all intents and purposes, the parties should treat each other as roommates rather than spouses.
If you are attempting an in-home separation in Virginia, be sure to consult with an experienced family law attorney as early in the process as possible. Livesay & Myers, P.C. has a team of experienced family lawyers with five convenient office locations, representing clients across Northern Virginia. Contact us to schedule a consultation today.
See also: Guide to Separation in Virginia