In House Separation in Virginia Divorce

Separation typically requires that the spouses have ceased cohabiting.  When spouses are living in different residences, judges will find they are not cohabiting.  In some cases, however, even if a couple is living “under the same roof” a judge might find that they are no longer “cohabitating” and are therefore separated.  Remember, it is up to the judge to decide if a couple has actually separated.

What is Cohabitation?

Cohabitation has no precise definition under Virginia law.  Most judges consider it to mean that a couple is living tother as a couple with shared responsibilities and duties and not like roomates. Cohabitation typically includes intimacy, but it does not have to. 

Accordingly, to convince a court that the parties are separated under the same roof, the court must be convinced that the couple is living like roomates. 

In one case, called Bchara v. Bchara, after the wife found a videotape of her husband having sex with another woman, she moved all of her things to another bedroom, they stoppped having sex, and she asked him to move out of the house.  She stopping depositing money into the joint bank account, stopped attending church with her husband, and she had a witness come to the house frequently who saw that the couple was no longer living as husband and wife. The court found that the couple was separated even though they were still living in the same house. 

Steps to Proving In Home Separation

Each judge, however, has his or her own feelings on what is required to be separated under the same roof.  So, there is no “one sized fits all” set of things a couple can do to guarantee that a judge will accept.  Here is a list of things to do to improve (but not guarantee) the chances of the judge finding an in house separation.  

There are several steps that spouses can follow in order to clearly establish that they are living separate and apart in the same home:

• Move into separate rooms
• Document the intent to separate permanently
• Stop all sexual relations
• Stop going out publicly – to weddings, on vacation, to church, to events, etc.
• Stop wearing wedding rings
• Inform family and friends of the separation
• Have a witness come to the home routinely (weekly or more often) to witness the separation
• Stop grocery shopping, cooking, cleaning, or doing laundry for one another
• Stop giving each other cards or gifts 
• Establish separate bank accounts 
• Divide up accounts and property if possible 

This is not a complete list.  Anything a couple can do to show that they are living as roomates and not as a married couple may be helpful.