Couples in some states can ask the court for a legal separation, entitling them to the same rights divorced couples have without going through a legal divorce. Virginia does not allow legal separation, but offers a “bed and board divorce,” which is quite similar to it.
Separation agreements, or property settlement agreements, are legal contracts that both spouses must enter into and are legally binding. If one spouse refuses to sign the agreement, they cannot be forced to do so.
Separation vs. Divorce in Virginia
Virginia does not allow couples to file for legal separation. Instead, the only option they have is to file for an actual divorce or a "divorce by bed and board."
According to Va. Code Ann. Section 20-91 (9a), Virginia law defines “separation” as “on the application of either party if and when they have lived separate and apart without any cohabitation and without interruption for one year.”
In a Virginia divorce, only one spouse needs to declare an intention to end the marriage to file. This means that if they begin living separate lives apart but both hope to reconcile, the court will not begin the date of separation until one spouse decides that reconciling won’t be possible.
What Is a Separation Agreement?
The most effective way spouses can prove their date of separation is for both parties to sign a separation agreement, which they can present to the court when filing for divorce. Separation agreements (or property settlement agreements) are legal contracts if both spouses sign.
In "bed and board divorce" and ordinary divorce cases, spouses use separation agreements to decide many matters. When there is a court order, a judge will "affirm, ratify, and incorporate" the separation agreement. This means that the court can enforce a separation agreement later, but it is also part of a court order that can be enforced via a contempt of court proceeding.
The court considers separation agreements as forever binding for both parties, except those involving child support and child custody. In those instances, Virginia law allows the court to review or modify those agreements to serve in the best interests of the child.
Independent Divorce Lawyer Recommended
In some separation agreements, each spouse hires a lawyer to draft the documents. In others, the couple agree to a joint mediator or attorney to draft the final terms of the agreement. Because it is legally binding, each spouse should retain their own family law attorney – the court will not protect a spouse from a bad agreement unless they can show force or duress.
Limitations of a Separation Agreement
Separation agreements are contracts voluntarily entered into by both spouses. If one party refuses to sign a separation agreement, there is no legal agreement. A spouse cannot be forced to sign an agreement.
If they cannot see eye to eye, with the exception of a no-fault divorce, they must wait the 12-month waiting period to file a complaint for divorce in the state of Virginia.
Separation agreements are not court orders, but fully executed agreements that are enforceable as valid contracts, not enforceable as a court order until it is incorporated into one.
Virginia Separation Agreement Benefits
While limited, separation agreements are not without benefit. They allow both spouses to avoid spending significant amounts of money and time in a contested divorce. With an agreement, they can start to move on with their lives. Virginia separation agreements:
- Usually resolve the majority of all outstanding issues between spouses. including child custody, visitation and support, spousal support, division of property and debts.
- Afford spouses greater control over settling these issues without leaving it to the court.
- Allow spouses to agree on discussions outside of court’s jurisdiction.
- Provide that divorce will be on no-fault grounds. Once the spouses have an agreement in place and have lived separate and apart for the appropriate time, either spouse can file for uncontested divorce on no-fault grounds.
- Can shorten the time required for no-fault divorce. Couples with minor children who sign a separation agreement have only a six-month waiting period for a divorce. Couples with minor children have a year to wait before filing, if they have separation agreement.
For this reason, even a couple with no joint property, debts or other issues to resolve might choose to have a separation agreement.
No-Fault Divorce vs. Fault-Based Divorce in Virginia
In a no-fault divorce, a couple’s separation must be continuous, with no interruption. They must not cohabit and must intend the separation to be permanent. A no-fault divorce does not require proof that a spouse did something wrong, such as adultery or desertion.
A fault-based divorce contains other grounds for divorce that include:
- Felony conviction resulting in more than one year in prison.
- Creating a reasonable fear of bodily harm
- Willful abandonment or desertion.
Proving Grounds for Fault
Proving that a spouse committed any of these acts can be more challenging than simply showing that a couple lived apart. The filing spouse must collect and show evidence supporting their story.
For example, an individual cannot be accused of desertion if the couple already had an agreement to separate; in that case, the spouse that leaves may be excused from desertion as a grounds for divorce. A spouse who wants a fault-based divorce should consult an experienced divorce attorney.
What Is a “Bed and Board” Divorce?
A Virginia divorce from bed and board is much like legal separation in other states. Couples who request a divorce from bed and board, for example, if their religion does not allow actual divorce. Some couples use this separation period to deal with other issues while waiting for the time to pass for an actual divorce.
These can include property division, child support, child custody, debt or other circumstances of a divorce that a court would otherwise hear.
Misconduct in a Bed and Board Divorce
In a bed and board divorce, one spouse alleges misconduct as the separation reason. They may wish to start the divorce process immediately after the conduct occurred, but the court will only grant an initial "limited" divorce.
In this type of divorce, the court divides the property and awards custody or support, but the spouses stay married until an absolute divorce is granted, which can take up to an additional year, depending on the court.
A bed and board divorce must include:
- Apprehension of bodily harm.
- Willful desertion.
Preparing Divorce Papers in Virginia
Virginia is one of just a few states that does not provide court forms for filing for a divorce. The state Legal Aid office offers persons seeking a divorce a do-it-yourself packet.
It includes filing instructions and an interactive tool that allows the user to make documents for an uncontested divorce. There are some supporting forms available on the state's Circuit Court Civil Forms page.
Divorce cases in Virginia go through the circuit courts, but city and county circuit courts have different rules regarding filing, and some have their own forms. Filers may go to their local clerk court’s office and ask for forms in person, but staff cannot give out legal advice.
Filing a Divorce Complaint
Filers will prepare the divorce complaint, letting the court know what they are seeking in the divorce proceeding.
To file for an uncontested divorce, the claimant should include the couple's separation agreement and a final divorce decree, which must match the stipulations in the separation agreement. Each spouse must sign the separation agreement and the final divorce decree.
Waiving Service of Divorce Papers
To proceed quickly with an uncontested divorce, the filer should have their spouse agree to waiving service of the divorce papers and instead fill out and sign the Acceptance/Waiver of Service of Process (Form CC-1406), in front of a notary.
After completing all of the forms, the filer should make two copies of each document; the court keeps the original forms, and one copy of each goes to the divorcing spouses.
Filing Divorce Papers in Virginia
Virginia allows couples filing for divorce to do so at a county or city court clerk's office. If a spouse objects to their spouse’s choice of venue (court location), the court can transfer the case to:
- City or county where the couple last lived together.
- City or county where the non-filing spouse presently lives.
- City or county where the filing spouse lives, if they couldn’t personally serve their spouse with divorce papers.
Paying Court Filing Fees
Once the filer goes to the court clerk's office to file divorce papers, they’ll pay a filing fee that varies depending upon the location. Filers can determine what they’ll pay by using the Virginia's Circuit Court Civil Filing Fee Calculator.
Spouses who can’t pay the filing fees must file a request for a payment waiver. If it is an uncontested divorce, they’ll use a Petition for Proceeding in No-Fault Divorce Without Payment of Fees or Costs.
Serving Divorce Papers in Virginia
After filing, the person seeking the divorce must give the papers to their spouse via "service of process.” A member of law enforcement hand delivers the divorce filings to the spouse for a minor fee.
If the spouse can’t be served (for example, they do not live in Virginia or can’t be otherwise located), the filer can ask permission of the court to use an alternative method of service.
The filer will not have to serve divorce papers if their spouse has completed and signed the Acceptance/Waiver of Service of Process and they include the form when filing paperwork with the courts.
Steps After Service of Divorce Papers
In a contested divorce case, the filer’s spouse has up to 21 days to file a complaint from the time they were served with papers. The case then goes through the legal process of discovery (gathering evidence and information from the served spouse and others) and court hearings.
If the case is uncontested, the filer can finalize the divorce without hearings and submit just an affidavit with the paperwork.
- Livesay and Myers: Guide to Separation in Virginia
- Virgina Law: Section 20-91. Grounds for Divorce From Bond of Matrimony; Contents of Decree.
- Case Text: Owney v. Owney
- Case Text: Va. Code Section 20-95 Grounds for Divorces From Bed and Board
- VA Legal Aid: Virginia Do-it-Yourself Divorce Instructions
- VA Courts: Circuit Court Civil Forms
- VA Courts: Acceptance/Waiver of Service of Process and Waiver of Future Service of Process
- Virginia Courts: Circuit Court Civil Filing Fee Calculation
- VA Courts: Petition for Proceeding in a No-fault Divorce Without Payment of Fees or Costs
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.