6 Myths About Separation and Divorce in Virginia

Often, clients who see me for an initial consultation arrive with information they may have learned from friends, family, or the internet – information which may not be accurate. The following are six common myths I have heard regarding separation and divorce, and the facts about each.

Myth # 1: “If we can’t agree on everything, we have to go to court.”

Fact: Although some divorce cases end up in a final hearing before a judge, the vast majority of cases are resolved beforehand — even cases that start out being very contentious.  Someone has to make decisions on issues regarding children, support, and property.  The people in the best position to make these decisions are the parties themselves, although many need help getting there.

In many cases, couples may want to work out the issues they face, but need help doing so.  Fortunately, many tools exist to help.  Parties can attend mediation before or after a case is filed in court.  A trained and skilled mediator can facilitate communication between parties, and help guide the parties to a resolution.  Collaborative law is another option for couples who agree that they want to stay out of court, but need support and guidance to resolve the issues between them.  In collaborative law, both parties retain separate, specially trained attorneys who work together, rather than against one another, in an effort to help the parties resolve their differences.

Myth # 2: “We have to live in separate places for a year until we can get divorced, so there’s no point in planning for divorce proceedings until then.”

Fact: Even if you are still living in the same house, and perhaps even sleeping in the same bed, if you are considering divorce (or your husband has told you he is considering divorce), you should seek counsel to ensure your rights are protected.  What you do in the short term may have a significant impact on your case in the long term.

Myth # 3: “If I move out, I’ll lose rights to the house.”

Fact: If you move out of a shared residence you do not forfeit any rights you may have to the ownership of, or equity in, that residence.

While the moving party won’t lose his or her rights to the house, the decision to begin living in separate places can be complicated, with legal and practical implications you should discuss with your attorney.

Myth # 4: “Everything is in his name – that means he’s entitled to keep it all,” or “the debts are all in my name – that means I’m stuck with them.”

Fact: In Virginia, if property is acquired during the marriage, it is presumed to be marital property, and may be considered in the overall division of property by a court, regardless of how it is titled.  Likewise, if a debt was incurred during the marriage, it is presumed to be a marital debt, and may be allocated between the parties, regardless of titling.  Classification of property can be complex, but it is an issue your attorney should discuss with you to make sure you are fully informed about your situation.

Myth # 5: “As long as my spouse has a lawyer, I don’t need one.”

Fact: In Virginia, a lawyer can only ethically represent one person in a divorce proceeding – never both.  Both parties in a divorce action should have an attorney to ensure their rights are protected.

Myth # 6: “If I think the agreement we sign isn’t working out, we can just renegotiate the agreement or cancel it.”

Fact: If you and your spouse sign an agreement dealing with any aspect of your marriage or divorce, you may not be able to change it, even if you didn’t have a lawyer advising you before you signed it, and even though it may be oppressive and unfair.  Before you sign any type of agreement, even an informal one, you should discuss the legal and practical effects of the agreement with your attorney.

The choices you make in your separation and divorce may have lasting effects for the remainder of your life, and the lives of your children.  Consulting with an attorney who focuses on family law can help you to understand your options, and make the best choices for you and your family.

Frequently Asked Questions:

How do I file for separation in VA?

In Virginia, there is technically no state of being legally “separated.” You’re either married or divorced. However, if you and your spouse are living separately and you want support or other relief but you do not have grounds to file for divorce, you may qualify to file an action for “separate maintenance.”

How long do you have to be separated before divorce in VA?

In most cases you have to live separately for a year to qualify for a divorce in Virginia. However if you have no minor children and have executed a separation agreement, you can be divorced in six months. If you file for divorce based on adultery, you can technically finalize the divorce without the year or six month waiting period, however this may be practically impossible due to the way local courts typically structure their dockets. Courts generally do not like to schedule divorce trials before the year separation period is up, because if a party can’t prove their adultery claim, a divorce can’t be granted. By contrast, if the trial is held after the year separation period has run, even if adultery can’t be proven, a divorce based on living separately for a year can still be granted.

Do you need a legal separation before divorce in Virginia?

No, because there is no state of being legally separated in Virginia. However as discussed above, you do generally need to live separately from your spouse for either six months or a year, depending on which type of divorce you qualify for.

Grant Moher, Esq.  
About the Author
Mr. Moher has practiced law in the Commonwealth for over 10 years. He receives a preeminent rating (AV) from the Martindale-Hubbell Law Directory and has been listed for multiple years as a “Rising Star” in Virginia’s Super Lawyers magazine. He is also listed in Best Lawyers in America.