In-House Separation in Virginia – How do you do it?

In-House Separation

You may know that you and your spouse must live separately for a period of time (either six months or a year, depending on the circumstances) before you qualify for a no-fault divorce in Virginia.  But must you and your spouse live in separate households before or during a pending divorce to qualify as being separated? The short answer is “probably not.” In most cases, you and your spouse can continue to live in the same home during your separation and/or pending divorce proceedings, provided you take steps to establish an “in-home separation.”

Virginia courts generally recognize in-home separations as valid.  Courts realize that sometimes divorcing spouses are unable or unwilling to maintain separate households for financial, child care, or other reasons during the divorce.

So how does an in-home separation work? That answer is a bit more complicated and there is no single way of doing it, but outlined below are some of the important things to consider when separating in the same home.

How to live “Separate Under the Same Roof”

The goal of separation is to prove to the court that you no longer are or act as a married couple. So, during an in-home separation you must live your life as though you are sharing a space with a roommate. It is critical that you maintain separate bedrooms, that you have no romantic relations, and that you not present yourself in public as a married couple (e.g. no wedding rings, attendance at events, etc.).  You should also, if possible, separate personal expenses, don’t take meals together, don’t purchase food for each other or clean each other’s living spaces or do each other’s laundry, and keep socializing together inside the house to a minimum.  You should also let family members and close friends know you are living separately in the same house.

A key aspect of an in-home separation is you and your spouse’s mutual agreement to separate in this manner. You can avoid disputes over either side’s intentions and/or the “official” date of your separation with a simple agreement in writing. Even better yet, create a clear plan with your spouse on the new living arrangements so that there is no confusion for either person.

Should other people know about our separation?

Yes.  If you and your spouse decide to separate under the same roof, you should let friends and family members know.  You will also need another individual to verify your in-home separation to the Court. This person can be a relative, friend, neighbor, nanny, co-worker, or even an adult child. However, this person would either have to live in your house during the separation period or visit there frequently – preferably weekly or at least monthly. He or she needs to be able to observe a household with two people living in a way that is not equivalent to a marriage so that he or she can provide the necessary confirmation that the Court requires.

Other things to consider:

Depending on your circumstances, the duration of your separation (whether in-house or not) must meet either the mandatory six month or one year mark under Virginia law. You should speak with a Virginia Family lawyer before starting an in-home separation to ensure that it has the best chance of being held valid by a court.  Plan you separation accordingly and assess whether an in-house separation aligns with your plans and goals.

Frequently Asked Questions

What to do when someone breaks a separation agreement?

If the separation agreement has been incorporated into a court order, you can request that the court issue a Rule to Show Cause, and have the violator held in contempt for his or her actions.  The court may impose different sanctions on an individual violator, depending on the nature and severity of the breach.

Is Dating while separated adultery in Virginia?

“Adultery” means only sexual intercourse between a man and a woman.  However a divorce can also be granted based on other forms of sexual contact.  Before engaging in any form of sexual contact with anyone other than your spouse, even if you’re separated, you should discuss the situation with an attorney to determine how your actions may affect your situation.

Jessica Arena  
About the Author
Ms. Arena is a member of the Family Law Section of the Virginia State Bar, a certified Guardian ad litem, and admitted to practice in Virginia and the United States District Court Eastern District of Virginia.