Unlike many other states, Virginia courts do not grant "legal separations," in which a couple lives apart following a court order but do not get an actual divorce. The closest thing is a contractual separation agreement made between the spouses. You can write a separation agreement with the help of an attorney, or download a template form online. The agreement is contractually binding when both parties sign it, although the document is not initially bestowed by the courts.
Another type of separation agreement – albeit rare – is a Bed and Board divorce, a partial divorce in which the parties are legally separated but are not permitted to remarry.
Contractual Separation Agreement
Virginia separation agreements are legal contracts that couples sign to establish intentional, permanent separation – a no-fault grounds for divorce in Virginia. Either party may then file for an uncontested divorce after a waiting period of one year. If you don't have children, you can drop the waiting period to six months as long as you have signed a separation agreement. The agreement is a critical document if you have no children and wish to divorce quickly.
Writing a Separation Agreement
Since Virginia separation agreements are legal contracts, you must write and sign them with all the formalities of contract formation. Otherwise, your separation agreement will not be valid. In Virginia, you should:
- Enter into the agreement voluntarily.
- Print or type the separation agreement using clear and unambiguous language. If you later disagree on what the agreement says, you may have to go to court and have a judge interpret it.
- Read and understand the agreement before signing it.
- Make sure the agreement is signed by both parties in the presence of a notary public.
Common Elements to Include in a Separation Agreement
As well as confirming that a couple has voluntarily separated, the agreement is commonly used to establish such matters as property division, payment of debt, alimony, child support, custody, visitation and other matters that would ordinarily be decided in a court hearing as part of a divorce. While you and your spouse can decide these matters between yourselves on an amicable basis, an attorney can be helpful in negotiating a fair and reasonable settlement for yourself, your spouse and your children.
Filing the Separation Agreement
When you sign your separation agreement, you don't have to file it with the court to be effective. However, if you file for divorce after the wait period, then the court will review the separation agreement and incorporate it into the court order. At this point, the separation agreement becomes part of the divorce judgment. If one spouse fails to obey it, he or she may be in contempt of court.
Living Together Voids the Agreement
By Virginia law, if you and your spouse resume living together as a couple, the separation agreement becomes void. If you want the agreement to be in force while you attempt a reconciliation, be sure to include language that says the agreement will remain in effect after reconciliation.
Bed and Board Divorce
A bed and board divorce is a rare type of court action that couples use when they want to be legally separated but are unwilling to divorce for moral or religious reasons. Unlike absolute divorce, it does not dissolve the marriage, so neither party has the right to remarry. Bed and board divorces are fault-based. One spouse must show bad conduct by the other spouse, such as desertion, abandonment, cruelty or physical harm. For this reason, bed and board divorces are not suitable for couples who wish to separate by mutual consent.