Whether you and your spouse are going through a rough patch or considering filing for divorce, living separately from each other may be a reasonable next step. This is considered “separation” in Virginia, and it is an important requirement in seeking a no-fault divorce.
Understand your rights during a separation in Virginia and what this concept means in the context of divorce law.
What Is Separation in Virginia?
Separation is the general term for living separately from a marital partner. If you want to file for a no-fault divorce in Virginia, you and your spouse must be separated for a certain period of time prior to filing. In this context, separation in Virginia involves two major components:
- Physical separation: To meet the no-fault grounds for divorce, you must live separately from your spouse for a minimum of one year, or for six months if you have no minor children and a signed separation agreement. This includes living separately “without cohabitation or interruption.” While you can still share the same house, proving your separation will be more challenging.
- Intent to end the marriage: The separation requirements also involve an intention that the separation will be permanent or that you and your spouse will end the marriage. Having written communications about this intent can help prove that you meet the no-fault divorce requirements at the end of the one-year or six-month period.
Understanding Your Rights During a Separation in Virginia
While you are living separately from a spouse, either to prepare for divorce or simply take time apart, you still have certain rights under Virginia law. Understanding those rights during a separation in Virginia can help you protect them.
- You have the right to refuse to sign a separation agreement. Separation agreements are voluntary in Virginia. You don’t have to sign one if you don’t agree with your spouse on issues like child custody or property division.
- You generally have the same rights as a married person. You are still legally married during a separation and still have many marital rights, such as property and spousal inheritance rights, unless modified by a court order or agreement. However, rights related to cohabitation or marital duties may be affected.
- Both parents have equal rights to custody and decision making for their children unless and until a court order or custody agreement establishes a different arrangement. Living separately does not mean your spouse can prevent you from seeing your children or participating in their care.
- You have the right to benefit from shared property until it has been divided in a divorce, including the marital home. Without a court order, your spouse does not have the right to force you to leave the marital home. You can work out an arrangement privately, or you may both continue living in the home, as long as you can prove your separation.
- You have the right to live separately without it being counted as desertion. Separation is not the same as desertion, which involves one spouse abruptly leaving the marriage without regard for the impact on the other. Desertion is one of the grounds for divorce in Virginia.
Our Attorneys Can Help You Understand Your Rights During a Separation in Virginia
Navigating separation can be challenging, but you want to ensure that you approach the process effectively if you are planning to divorce. Our experienced divorce attorneys can help you understand your rights during a separation in Virginia and answer any questions you may have about this process.
Schedule a consultation with Holcomb Law, P.C., today by calling 757-LAWYERS
