Separation is Virginia's version of a no-fault divorce, but the state is not very strict about its requirements. Other than the duration of your separation, Virginia imposes few rules for its terms. You don't have to file anything with the court to begin the separation period, and a written agreement between you and your spouse is optional.
Living 'Separate and Apart'
Virginia's legal definition of separation relates mostly to intellectually and emotionally ending your marriage. Although you and your spouse would likely move into separate households, it's not mandatory under Virginia law. If you continue to share the same home for economic or other reasons, however, it's important to stop living as husband and wife. At least one of you should have a firm conviction that the marriage is ending. If you begin your separation then reconcile for a short period of time, your separation period begins all over again.
If you and your spouse believe it would be helpful, you can draw up a formal agreement explaining the terms of your separation. Virginia recognizes separation agreements – also called property settlement agreements in this state – as legally binding documents. Unlike in some other states, it's not imperative that your Virginia separation agreement address every single issue of how you and your spouse are going to resolve your marriage. However, you'll have to reach an agreement on all issues eventually, in order to become divorced, or the court will decide the issues for you. Your separation agreement can address custody and child support if you have children, as well as the division of marital assets. You can address debts and who's going to pay for certain living expenses, particularly if you continue to live in the same household.
Separation as Grounds for Divorce
To file for divorce on separation grounds, you must live separately for a year, with one exception. If you don't have children, Virginia will grant you a divorce after only six months. Although Virginia is lenient about its separation requirements, its statutes add a one-year separation period to some fault grounds for divorce, such as cruelty or desertion. Unless your spouse has committed adultery – and some strict requirements apply to Virginia's adultery grounds – you must typically separate for a year to divorce in this state, no matter what grounds you choose. At your final hearing, both a third-party witness and the spouse who did not file for divorce must confirm the separation period under oath.
Read More: What Are the Benefits of Legal Separation Vs. Divorce?
Divorce From Bed and Board
Occasionally, couples want to separate, but they can't reach an agreement on important issues so they can do so. For example, spousal support or child support might be necessary, but one spouse may refuse to voluntarily pay it. If this occurs, Virginia allows you to ask the court to order the terms of your separation for you. You can file for a "divorce from bed and board," which is a legal form of separation in Virginia. Despite the word "divorce," your marriage doesn't end. You're not free to remarry. However, the court will enter a judgment after a trial, issuing an order to address things like custody, property division and support. If you elect this option, you must file a bill of complaint, just as you would for a regular divorce, but you’re limited to two grounds: desertion or cruelty. After a year's time, you can covert the divorce from bed and board into an absolute divorce if you want to.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.