Separation in Virginia Divorce

Separation means that the couple is living separate and apart, without any cohabitation or interruption, and one party has to intend that the separation be permanent.  Cohabitation means different things depending on the judge who is hearing the case. If the parties have moved into separate residences, almost every judge would find that cohabitation has stopped.  Some judges may find that cohabitation has stopped even if the parties continue living in the same residence.  In order to learn more separation while living together, see In House Separation.  In order to be separated, the cohabitation must not stop and start.  A party would not be separated, for instance if one party moved out for a short time and then moved back in.

What Does a Separation Agreement Have to Do With Separation? 

Most people think that an agreement is required for the couple to be separated.  This is not true.  A couple is, or is not, separated based on the criteria above, and not by an agreement. 

Can the Parties Set the Date of Separation by Agreement?

No.  Whether or not a couple is separated is a legal matter that is ultimately up to a judge.  The parties cannot use an agreement to artificially set the date of separation.

Is There a Process in Virginia to be “Legally” Separated?

No.  Whether the parties are separated is not ultimately determined until a judge rules on the divorce itself. 

What is the Importance of the Date of Separation? 

• Until the parties are separated, neither of them can go to the Juvenile and Domestic Relations Court to seek temporary spousal support, custody, or child support. 
• Until the separation has continued for the required amount of time, a divorce based on the ground of separation cannot be filed.
• With some exceptions, property acquired before the date of separation is considered marital property and property acquired after the date of separation is considered separate property.  Marital property can be divided in the divorce; separate property cannot not.
• With some exceptions, debt acquired before the date of separation is considered marital debt and debt acquired after the date of separation is considered separate debt.  Marital debt can be divided in the divorce; separate debt cannot not.
• Most judges will not give adultery that began after the date of separation that much importance.