One of the requirements for a no-fault divorce in Virginia is you must have lived “separate and apart” from your spouse for a period of six months if you have no minor children and a signed property settlement agreement, or one year if you do have minor children. Many people assume that this means you cannot live in the same home as your spouse during this separation period. While this is the intent of the law, there are some caveats. Now, more than ever, more and more couples are residing in the same home for a majority, if not the whole, period of separation, usually due to financial constraint.
It makes sense. Paying for two difference homes is expensive, and tricky if kids are involved. It takes time to find a suitable, and affordable, place to live because let’s face it, divorce can be very expensive. If you are at least fairly amicable with your (soon to be) ex-spouse, living together while separated can be viable alternative.
Now, for the caveats…at the end of your separation period, you have to swear, under oath, to a Judge that you and your spouse lived “separate and apart, without cohabitation and without interruption.” Still, what does that mean?!
Cohabitation simply means that you are living and acting as husband and wife, when you’re alone and/or when you’re out in public. This doesn’t just mean whether you and your spouse are still having sex, but that is part of it. It also means whether you are acting like you are still married. Do you celebrate holidays and anniversaries together? Do you still cook dinner for your spouse? Do you attend church together? Do your family and friends even know you have separated? This is where it gets complicated. While living together “separated” is an easy and cheaper alternative to moving out to your own place, you have to work harder to not fall into the comfortable old habits of married life. The law says separation.
Please don’t read this to say that we are saying that you absolutely should not talk to your spouse during a separation period. Actually, this “cooling off” period is set in place by a pro-marriage state to allow you this opportunity to rethink a divorce decision. As a pro-marriage law firm, we encourage you to do so. If you go forward with a divorce, just know that you will have to affirm that you have lived separate and apart without cohabitation and without interruption and you must be honest. If you are going to remain in the home during your separation, we suggest making changes now to the way you live – and do so in a way that you can honestly say you have lived “separate and apart.” If you have any questions, please don’t hesitate to contact us at firstname.lastname@example.org. We are always happy to help!