With the tough current ecomonic times, many couples who are planning for a divorce are making the choice to remain under the same roof, in the marital residence, during their legally-mandated period of pre-divorce separation. This is probably not what the Virginia legislature intended when they wrote the law about living
“separate and apart” before divorce, but this is where we are at in these shaky financial times and the courts have found themselves having to creatively define what “separate and apart” means.
In Virginia, the law states that, before being granted a no-fault divorce, parties must “live separate and apart, without cohabitation and without interruption, for one year”. If there are no minor children, and if the parties have a written and signed settlement agreement, their period of living separate and apart is just six months.
The reason for the one-year separation rule is public policy: The state wants married couples with children to be absolutely sure that divorce is what is best for their family. In order to determine that, the legislature has forced families to go through all of the holidays, birthdays, seasons, etc. before they are even allowed to make that final decision to divorce. Living under the same roof does not truly meet those public policy mandates, but if that is what you plan on doing (and many peope do, these days), here are some guidelines that may help you in determining how to live separate and apart while under the same roof:
- One spouse should deliver a formal letter to the other stating the intention to live separate and apart as of a certain date.*
- To establish separate households, you should not engage in the following activites:
- Sexual Relations
- Sharing of Food (keep food separate in pantry and refrigerator)
- Sharing a Room
- Shopping and Cooking for each other
- Cleaning Up or doing each other’s Laundry
- Giving Gifts to each other
- Attending (arriving at) Social or Family Functions Together
- Holding Yourselves Out as a Married Couple
- Spouses should separate and secure Computer, Phones and Email Accounts*
- Spouses should consider dividing Bank Accounts (close joint accounts)*
- Spouses should consider paying off and closing Joint Credit Cards*
- Spouses need to Agree On Division Of:
- Household Expenses
- Household Duties
- Living Arrangements
- Childcare
- Let others know you are separated
- Choose a friend of famly member, who visits frequently, as your independent witness. In Virginia, you will need someone to testify as to your living separate and apart.
- Be prepared to explain, in a way that is comfortable for you, the reasons for living separately in the same residence to your family, friends, neighbors and children.
*These are bold pre-divorce financial moves that should not be attempted without the advice of legal counsel.
This article is not intended to take the place for legal advice from an attorney. This blog is for informaitonal purposes only and is not legal advice.
Source: From Virginia State Bar, Family Law News – Fall 2010 (Vol.30 No.3) with personalized comments and suggestions by the blogger, Robin Graine
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Fairfax VA Divorce Mediator 