Marriages, like any relationship, can experience ups and downs. Sometimes, despite efforts to salvage the relationship, marriages can reach a breaking point where divorce becomes the only option. However, divorce doesn’t happen overnight, especially in Virginia. Here, there needs to be a period of separation before a divorce can be finalized. 

The Importance of Date of Separation

In Virginia, the date of separation marks the beginning of the separation period, which is a prerequisite for divorce. It is the date when one or both spouses decide to live separate and apart with the intention of ending the marriage permanently. While the emotional separation may occur long before this date, legally establishing the date of separation is essential for various reasons, including determining the division of assets, spousal support, and child custody arrangements.

Can You Divorce in VA Without Separation?

No, in Virginia, a period of separation is required before a divorce can be granted. The Commonwealth of Virginia does not recognize “no-fault” divorces without a period of separation. This means that spouses must live separately for a certain period before filing for divorce.

Requirements to be Legally Separated

To be considered legally separated in Virginia, spouses must meet the following requirements:

1. Intent: At least one of the spouses must have the intent to end the marriage permanently, and ideally, communicate this intent in writing. There should be no reconciliation or resumption of marital relations during the separation period.
2. Physical Separation: Spouses must physically live separate and apart. This means residing in separate households and not attending events or going out together as a couple (unless it is done for the children). If living in separate homes is not feasible or practical, they must not sleep in the same room, eat together, or do things for one another in the same house. Judges in different jurisdictions apply these rules differently, so an attorney experienced with the local judges can help you plan an in-home separation.

How Long Do Spouses Have to Be Separated Before Divorce?

In Virginia, spouses must be separated for a minimum period before filing for divorce. For couples with no minor children and a signed separation agreement, the separation period is six months. However, if the couple has minor children and/or does not have a signed separation agreement, they must be separated for a period of one year before filing for divorce.

Proving Date of Separation

Proving the date of separation is crucial in a Virginia divorce. Documentation such as lease agreements, utility bills, bank statements showing separate residences, and witness testimony can help establish the date of separation. Emails or text messages can also be used as proof. It’s essential to gather evidence to support the claim of separation to avoid disputes during the divorce process.

Can You Backdate a Separation Agreement in Virginia?

No, backdating a separation agreement in Virginia is not advisable. It’s crucial to establish the date of separation accurately and honestly to avoid potential legal repercussions. Attempting to backdate a separation agreement can undermine its validity and credibility in court and is considered “fraud on the court”.

Are We Legally Separated if We’re Still Hoping for Reconciliation?

No, reconciliation or the hope of reconciliation during the separation period can invalidate the separation. To be considered legally separated in Virginia, at least one of the spouses must have the intent to end the marriage permanently and must live separate and apart without any intention of reconciliation.

If you’re still hoping for reconciliation, by all means, do everything you can to save your marriage. Even if you still end up in divorce, it’s some consolation to know that you did everything you could to save it first. Make sure, however, that by reconciling you are not sacrificing your rights or legally forgiving your spouse for anything they may have done to hurt you or your marriage. In these cases, it would be best to consult with a divorce attorney.

5 Proactive Things to Do During Separation

1. Seek Legal Advice: Consult with a knowledgeable divorce attorney to understand your rights and options during the separation period.
2. Document Everything: Keep detailed records of finances, communication with your spouse, and any significant events during the separation.
3. Protect Your Finances: Take steps to safeguard your financial interests, including opening separate bank accounts and monitoring joint accounts.
4. Focus on Self-Care: Prioritize your emotional well-being by seeking support from friends, family, or a therapist.
5. Plan for the Future: Use the separation period to plan for your future, including making decisions about housing, child custody, and financial independence.

Separation can be difficult, but it can be a time of resolve and preparation for a better future. At Slovensky Law, we understand the challenges you will be facing at this time, and we are here for you 100%. If you’re considering divorce or navigating a separation, our experienced attorneys are here to provide compassionate guidance and effective representation. Contact us today to schedule a consultation and take the first step toward a brighter future.