Guide to 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.

Unlike many states, Virginia does not have a procedure for obtaining a status of “legal separation” in these no-fault cases. Meaning, divorcing couples in Virginia usually go from being married, to living apart (with or without a separation agreement), to getting a divorce—with a court only getting involved at the divorce stage. There is not an interim stage where a Virginia court grants the parties the status of “legally separated.”

The closest thing Virginia has to the type of legal separation granted by other states is something called a “divorce from bed and board,” which is limited to fault-based cases and very rarely granted in Virginia.

Living Separate and Apart

So, what does it mean to live “separate and apart” for purposes of a divorce on the separation ground in Virginia? It essentially requires two things: (1) physical separation with (2) at least one party having the intent that the separation will be permanent.

1. Physical Separation. Physical separation is usually achieved by one party moving out of the marital residence. However, Virginia law does allow spouses to live separate and apart under the same roof for purposes of their six- or twelve-month separation period. There are very strict guidelines for this process. For more information, see In-Home Separation in Virginia.
2. Intent. One of the parties must have decided that the marriage is over and communicated that fact to their spouse. In many cases this is done by a text message or an email, but often there is simply a conversation. It is best to document this by stating the intention to permanently end the marriage (as of a certain date) in writing.

Proving the date of separation is a factual determination, so the courts will need some sort of evidence to corroborate the date of separation. For more information, see Establishing Date of Separation in a Virginia Divorce.

Dating While Separated

There are several important factors to consider before you begin dating while separated from your spouse in Virginia. It is not a crime to simply date during your separation. However, adultery does remain a crime in Virginia, and a ground for divorce. And, in cases where children are involved, dating can have a potential impact on the court’s custody and visitation determination. For more information, see Can You Date While Separated in Virginia?

Desertion vs. Separation

How does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion, which is a fault-based ground for divorce? Virginia courts distinguish desertion from separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom or even the marital residence does not by itself show that a desertion has occurred. Instead, a finding of desertion requires that one party has ceased performing their marital duties, which can include but are not limited to providing financial support or contributing to marital bills or debts, and providing emotional or physical support.

Separation, as distinguished from desertion, is separating from your spouse, either in the home or outside, while still operating under the rules and standards of the marriage, such as division of the marital obligations and duties. Usually, a separation and the terms of the separation are discussed and agreed, whereas a desertion is more of a unilateral action by one party, leaving the other party saddled with all the marital duties and obligations.

Ultimately, there is a thin line between desertion and separation under Virginia law. The safest course of action is to formalize the terms of your separation by using a “separation agreement.”

Separation Agreements

Separation agreements are contracts which can be used to settle all of the rights, interests, and obligations of separating or divorcing parties. In Virginia, separation agreements are commonly referred to as “marital settlement agreements” or “property settlement agreements.”

Benefits of Separation Agreements

Separation agreements offer a number of tremendous benefits to separating or divorcing couples:

1. Separation agreements typically resolve any and all outstanding issues between the parties, including the division of property and debts, spousal support, and child custody, visitation and support (where applicable). A full and comprehensive separation agreement can thus preclude the need for expensive and time-consuming litigation.
2. An agreement also affords the parties greater control over the how these issues are settled, instead of leaving various decisions to a judge.
3. An agreement allows the parties to agree on matters which are outside of the court’s jurisdiction, such as post-secondary educational expenses.
4. Separation agreements usually provide that any divorce of the parties will be on the no-fault ground of separation. With such an agreement in place, once the parties have lived separate and apart for the appropriate time, either party may then file for an uncontested divorce on the no-fault ground of separation.
5. Finally, a separation agreement can shorten the separation time required for a no-fault divorce. Parties with a separation agreement and no minor children may file for a no-fault divorce after only six months of separation. [Note that couples with minor children have to wait one year before filing, whether they have a separation agreement or not.] For this reason, even a couple with no joint property, debts or other issues to resolve might choose to enter into a separation agreement.

Limitation of Separation Agreements

Separation agreements are limited in their reach in several ways which separating or divorcing parties should understand:

1. Separation agreements are agreements—voluntary contracts entered into by two people. If the other party refuses to sign the agreement, then you have no agreement. A party cannot be forced to enter into a contract. If you and your spouse are unable to reach an agreement, then absent a fault-based ground for divorce, you must wait for the expiration of the 12-month Virginia separation period before filing your complaint for divorce.
2. Even with a separation agreement in place, the parties are not “legally separated.” Again, Virginia does not have a procedure for obtaining a status of legal separation.
3. A separation agreement is not a court order. A fully executed agreement is a valid contract and as such is enforceable by general contract principles. However, a separation agreement is not enforceable as a court order, until and unless it is “incorporated” into a court order. For more information, see Incorporation of a Separation Agreement Into a Court Order.

Although it is important to understand these limitations, they pale in comparison to the tremendous benefits offered by separation agreements. Separation agreements remain the most efficient way to settle most issues between separation or divorcing couples. They allow parties to avoid investing potentially large amounts of time, money and energy into a contested divorce, and to begin to move on with their lives. In most cases, they are well worth the effort.

Boilerplate Provisions

At the heart of any separation agreement are its provisions resolving the primary issues between the parties: property and debts, spousal support, child custody, visitation and support, etc. However, separation agreements usually also have a number of standard provisions which can have very interesting legal consequences. These “boilerplate” provisions deal with things like: freedom from interference; proceeding with a divorce only on no-fault grounds; attorney fees; enforcement; disclosure of finances; reconciliation; modification of the agreement; and much more. For more information, see Boilerplate Provisions in Virginia Separation Agreements.

Unenforceable Provisions

Separation agreements can be used to resolve any number of issues arising from the dissolution of a marriage. However, many provisions relating to child custody and support commonly sought or included in separation agreements are actually unenforceable under Virginia law. For more information, see Unenforceable Custody and Support Provisions in Separation Agreements.

Do You Need An Attorney for a Separation Agreement?

In an effort to save money, many people make the decision to sign a separation agreement that they purchased or downloaded from the internet, without first reviewing it with an attorney. The great danger with this approach is that, by cutting corners, you may not be cutting yourself a good deal. First, you may not know what you’re entitled to under Virginia law, so while you feel satisfied with the agreement you have reached with your spouse regarding various marital issues (for example, “I guess he or she can have the house”), that agreement could be extremely unfavorable to you when compared to what a judge might award you in court.

Second, a separation agreement drafted for you by an experienced family law attorney will typically include a variety of provisions protecting your interests under Virginia law. A generic online form agreement that is not state-specific, and not tailored to meet your individual needs, may leave you unprotected, and vulnerable to some very bad financial consequences.

A final problem with signing a “do-it-yourself” separation agreement is that, without review by an experienced family law attorney, it may well not hold up in court. You may get along great with your soon-to-be-ex now, but relationships often deteriorate and disputes often arise post-separation. There may come a day when you need to enforce the provisions of your agreement regarding custody, visitation, support, property or debts in court. However, if those provisions were not properly worded, then you may be forced to spend significant time and money litigating those issues in court. In fact, you may well end up spending much more in legal fees later to “fix” issues created by a faulty separation agreement, than it would have cost you to simply have a good agreement drafted right from the start.

Nothing should ever replace the advice of a skilled family law attorney when it comes to separating and divorcing your spouse. Attempting to save a few hundred dollars up front can cost you thousands or tens of thousands of dollars in the long run.

Setting Aside a Separation Agreement

The harsh reality of Virginia law is that once a separation agreement has been signed by both parties it is extremely difficult, if not impossible, to set aside.

There is a long-standing principle that people can make as good or as bad of a contract as they want. This is especially true in the case of separation agreements, which can be set aside in Virginia only on limited grounds—when they were entered into under “undue influence” or are “unconscionable.”

The difficulty of setting aside separation agreements in Virginia has been driven home in a number of appellate court decisions. In one case, the Virginia Court of Appeals upheld the enforceability of a separation agreement which provided for 110,000 in monthly spousal support to a woman whose (now ex) husband’s monthly income was 112,000. In overturning the trial court ruling which had set aside the agreement, the Court of Appeals held that there was no undue influence, even though the husband had signed the agreement as a precondition of reconciliation. Furthermore, the Court of Appeals found that the separation agreement was not unconscionable, despite the fact that the husband only made 112,000 a month, because he could make more money. Thus, the husband was held to the agreement he signed, and was forced to pay 110,000 a month in spousal support.

Many people seek out legal counsel with similar situations. They have signed something in the hopes of garnering trust with their spouse, with an eye toward a potential reconciliation. But what these people usually did not realize—until far too late—is that if the reconciliation fizzles and the parties permanently separate, then under Virginia law they will almost always be held to the terms of the agreement they signed.

Our Family Lawyers

Livesay & Myers, P.C. has a team of experienced family lawyers across five office locations: in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg-Stafford. Our attorneys have years of experience in assisting parties with separation and divorce, including the review, drafting and negotiation of separation agreements. If you are facing a separation or divorce in Northern Virginia, we can help. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.