In order to get a divorce in Virginia, being separated for a set amount of time is one of the requirements you have to meet. This means you must be separated for at least 12 months, or if there are no minor children, you only need to be separated for 6 months if you get a Separation Agreement. Frequently when I am talking with a potential client they will tell me that they have been separated for such and such amount of time. My next question is always “Are you still in contact with your spouse?” I ask this really for two reasons, first I know that we have to notify their spouse that they are filing for divorce, so I want to make sure we can get in contact with them. However, the second reason, is it digs into the question I really want to know. Are they truly separated?
“Separation” quite literally means termination of cohabitation. So, the question I have is if you are still living in the same house are you truly separated? If you are still living under the same roof as your spouse, albeit in different bedrooms, it’s going to be really tricky to prove to the judge that you’ve truly been separated. One of the things you are going to have to provide when filing for divorce is a witness that can swear they know that you and your spouse have been separated for the right length of time. This doesn’t mean that you’ve told someone you are sleeping in different bedrooms. They have to know from their own personal knowledge.
Sharing the same bed and being intimate is only part of what makes up the marriage, the judge is also going to want to know about your finances and whether or not they are separate. You must ensure that you no longer go to social gatherings together as husband and wife, your bank accounts are separate and you aren’t sharing money, for just a few examples.
Upon realizing that you must start living separately, clients sometimes say, “I can’t afford to move out of the house,” or “we are trying to make it easier on the kids.” But what are you going to do once you get a divorce? If you will be moving out then, why not start now?
To put it simply: if you are living under the same roof, you will most likely not qualify as being separated, which means the clock hasn't started ticking for your separation. Can you live under the same roof and still be separated? Sure, but you will have to jump through a lot of hoops in order to prove you are actually separated. Isn’t it easier to not have to jump through all those hoops?