Legal Separation Basics in Virginia
In Virginia, the term "legal separation" is not recognized by statute. Thus a "legal separation" in Virginia does not have any effect on the parties’ matrimonial status. After marriage, spouses are considered married unless one party files for divorce and obtains a legal decree prior to the entry of a final order of divorce.
If in the course of a divorce proceeding, a party uses the term "legal separation , " this is usually a reference to a circumstance where one spouse has exited the marital residence. There are no "legal separation" filings or papers signed and executed by the parties that result in a spouse being separated based on any official action – as there may be in jurisdictions where a court explicitly recognizes a "legal separation." The term is often used in the vernacular to refer to a separation in terms of the parties deciding to live apart. It refers to the act of living apart, and even more critically a voluntary mutual abandonment from cohabitation. However, until an individual files for divorce, submits a complaint for divorce, and has a final order of divorce entered, the spouses are technically still married.
Steps to Pursue Legal Separation
Filing for legal separation generally involves three key steps: gathering financial and marital information, determining the grounds for separation, and filing documents with the court.
Gathering Information
Before pursuing legal separation, couples should start gathering all relevant financial and marital information. For Virginia, the most common grounds for separation are mutual consent (also known as divorce by separating for one year, although six months is an option if the parties have no minor children and the separation agreement is signed by the parties) or a "fault" ground for separation, which entitles the plaintiff to immediate grounds for a divorce (although Virginia does not recognize a legal separation in its statutes, after one year, the grounds for divorce are the same in either case).
The most common "fault" grounds are adultery, cruelty, and willful desertion or abandonment. But even for a "no-fault" divorce, i.e., "divorce from bed and board," the parties should still gather information on these topics:
Once all of this information is organized, consult with an attorney to determine whether you would benefit from filing for separation or divorce from bed and board.
Filing for Separation and Divorce
The filing process for divorce in Virginia requires that you file a bill of complaint to begin the process. This bill of complaint must be filed with the Circuit Court in the city or county where at least one of the parties resides. A jury trial is generally not available for divorce actions in Virginia, and only in some rare and extreme cases, such as allegations of sexual abuse, can a trial by jury still be requested.
Although a divorce may be granted based solely on grounds of mutual consent or a "fault" grounds (e.g., adultery), most jurisdictions in Virginia and the Circuit Court will not grant a divorce unless the parties agree to certain agreements on issues like child custody, visitation, support, and property division. As such, while you are permitted to proceed with only one of these claims, it is often not advisable. An exception to this rule is when the parties have been separated for over a year, especially if the spouse against whom you are filing for separation and divorce is extremely uncooperative.
Grounds and Requirements
Filing for legal separation in Virginia does not require you to state grounds for separation. Rather, the spouse filing for separation may allege that the parties’ living separate and apart for a period of one year or allege that a bed and board separation exist for a one year period due to cruelty, desertion, or abandonment.
If you and your spouse have already lived separate and apart for one year, you can simply file a no-fault Complaint for Divorce and ask to be considered legally separated. However, either spouse can force the other to wait one year before the divorce is finalized.
If you have filed for a consensual/incidental "bed and board" separation, you will remain married, but with the assistance of the Court. If you have already filed a Complaint for Bed and Board Separation, you and your spouse will currently enjoy separate residences that allow the Court to bypass the separation waiting period for at-fault divorces.
Effects on Child Custody and Child Support
If the parties to a marriage file a separation agreement with the Circuit Court containing a child support arrangement (or if a temporary hearing is requested for child support), the Court will presume the agreement is in the best interests of the children. While the terms of this agreement will remain in effect until tribunal order or subsequent changes by agreement of the parties, they will only remain in effect so long as the marriage itself is in effect. By contrast, a property settlement agreement will remain in effect for an indefinite period of time regardless of the status of the marriage itself. For spousal support, similar rules apply. The agreement will only remain in effect as long as the marriage is intact, but will outlast the termination of the marriage by a subsequent divorce action. Both child support and spousal support obligations can be addressed in other actions or later modification actions if the circumstances require. For example, the standard for modification of child support is different than that of spousal support. For child support, the parent with lesser custody, who pays child support, is free to show a change in his or her income or other financial circumstance and likewise demonstrate a material change in the custody arrangement affecting the award of child support. For spousal support, the spouse with lesser income must still show a material change in circumstances and must also demonstrate that a change in the award of spousal support is necessary based on the factors spelled out in Virginia Code section 20-107.1 – or in other words, that the factors which influenced the original award of spousal support are no longer applicable to the current situation and a different award of spousal support is warranted.
Finances and Spousal Support
One major outcome of the legal separation process is that it allows parties to get organized financially. It is a time to get personal records in order and start keeping a detailed record of all financial transactions. In a legal separation, for the first time, a married couple is living separately, and often physically, as well as financially. This is the time to develop an understanding of how money is spent, where it is kept, and begin to deal with the impact of the expenses of living separately.
Dividing Assets – Legal separation does not divide assets. The division of marital property takes place at the time the parties divorce when a court makes a ruling on the equitable distribution of property. Therefore there is no property settlement agreement in place when the parties are legally separated. Many people, however, will informally divide the assets of the marriage. Doing so can simplify the divorce process down the road and save unnecessary litigation , since both parties will have already divided their assets based on their own understanding of these assets as marital or separate property.
Spousal Support – One of the most complicated issues when filing for legal separation is dealing with spousal support. With a legal separation, the parties do not have the ability to ask a court to order spousal support. As a result, the parties must negotiate this support at their own expense. Moreover, spousal support is available only to a spouse who has a need for support and to a spouse who has the ability to pay. Even if you are in compliance with any temporary spousal support agreement you may have, the court will have total discretion in ordering spousal support. Furthermore, the factors that the court considers in the spousal support equation do not change once the parties file for divorce.
Separation Agreements
When spouses separate legally, they might want or need a legal separation agreement. A legal separation agreement is the result of negotiations between both partners to their marriage, who are assisted by their individual attorneys.
The terms of a legal separation agreement can be as simple as who is responsible for paying a joint credit card account, or as complex as outlining custody arrangements for children, alimony and child support payments and any other terms they wish to outline for their future living arrangements.
Quite often, a legal separation agreement will be the basis of a divorce settlement agreement down the road. A legal separation agreement should cover the following areas:
When drafting a legal separation agreement, there are a few common pitfalls to avoid to help ensure your agreement is in place to protect both you and your spouse.
One mistake spouses make during a separation is not thinking ahead. When you and your spouse separate, it might seem like an amicable parting. You may know about all of your spouse’s retirement accounts and enjoy most of your time together. But later you might find out that there was money squirrelled away in a hidden account, money in an offshore bank account or money that went missing.
A common mistake spouses make is thinking that the legal separation agreement is a temporary solution, something you will do until you separate for a certain amount of time or decide to reconcile. Sometimes you change your mind and reconcile; other times you don’t.
Either way, you should be prepared to go through a divorce fairly soon after you legally separate. The process of going through a legal separation agreement becomes a trial run for the divorce – you have divided some things up for the separation, and now when you get a divorce, it will be like starting the process from scratch.
Finding Help From a Family Lawyer
While you are not required to seek the help of an attorney to file for legal separation in Virginia, it is strongly recommended. Legal separation in Virginia can become a complicated matter, especially for couples who have acquired significant property or have children together. A family law attorney can help you understand your rights and obligations under Virginia laws.
An experienced family law attorney can help you determine whether a separation agreement is the best option for you. If there are numerous issues that need to be resolved before you are comfortable filing for divorce, your attorney may suggest separating rather than filing for divorce immediately. After your separation, you can work the issues out later through a negotiated settlement or through a contested divorce.
When you consult with a family law attorney , he or she can help you draft and review your separation agreement based upon the information you provide. You may not have a complete list of the assets and liabilities you and your spouse have accumulated, but an attorney can find the information and help you determine a valuation timeline.
A family law attorney can also advise you on the likely outcomes of your separation agreement, trial separation, or divorce. While no two cases are the same, an experienced attorney can forecast how your case will be handled by the courts, helping you understand what level of risk you are facing.
Overall, it is important to speak with an experienced family law attorney if you are planning to legally separate or file for divorce. By doing so, you can ensure that your rights will be upheld and the outcome of your divorce will be fair.