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Legal Separation in Virginia - How It Works

Remember, each state has its own rules.

Often clients will ask how to file for “Legal Separation” in Virginia. The quick answer to that question is: you can’t really. It is true that some states (like California) allow people to file for “Legal Separation” – which allows you to deal with a number of issues without actually obtaining a divorce. While Virginia allows you to file with the court to address a number of issues without filing for divorce, the process for doing so is not as simple as filing for “Legal Separation.”

We’re Separating and Definitely Getting a Divorce…

If you are anticipating separating from your spouse, and ultimately being divorced – then you really just need to file for divorce. You do not have to “file for separation” or do anything prior to filing for divorce. However the question will likely be how to file for divorce.

In Virginia, there are two ways to file for divorce: fault and no-fault. If you are filing for divorce on fault grounds, you are alleging that the other spouse did something wrong and you are filing for divorce because of it. Specifically, you must allege cruelty, desertion or adultery as grounds. If you are claiming that grounds exist and this is the basis for your request for divorce – you can file at any time.

In a no-fault divorce, you are not accusing your spouse of wrong doing (hence the name “no fault”). However, before filing for no-fault divorce in Virginia spouses must be separated at least 12 months before filing. This means you must wait an entire year from your official “date of separation” before filing for divorce. (Note, however that you need only be separated for 6 months if the parties have no minor children and have a written property settlement agreement that resolves all issues arising out of the marriage.)

This raises the question of what is a “date of separation?” Simply put, the date of separation is the date that you and your spouse stopped marital cohabitation and intended for the cessation of marital cohabitation (separation) to be permanent. Marital cohabitation simply means living together as husband and wife (or spouse and spouse) and doing all the things that married spouses typically do (such as cooking for each other, doing laundry for each other, sleeping in the same bed, etc.).

Note that it is the marital cohabitation that must end – with emphasis on the word “marital.” It is often possible for spouses to be separated ‘under the same roof’ if there is no marital component to the cohabitation (e.g. living as roomates instead of a married couple). So for many clients who ask “Do I have to move out to be separated in Virginia?” the answer is – probably not. However because courts evaluate whether a separation has occurred on a case-by-case basis, it is important to work with an attorney to ensure that you are meeting the necessary requirements.

What if I can’t file for divorce but I need help now?

If you cannot file on grounds, and you do not have the 12 month separation period to file for no fault grounds (or you just don’t want to file for divorce) – there are still options for invoking assistance from the court. Divorce is filed in Circuit Court, which is the highest court in each county in Virginia. Each county also has a Juvenile & Domestic Relations District Court, which is a lower level court that hears some issues involving juveniles and other family matters.

It is possible to file petitions with the Juvenile court asking that court to address spousal support, child support, or custody and visitation of minor children without filing for divorce. If this happens, the Juvenile court would enter orders addressing the particular issue of support or custody/visitation – and leave it to the parties to later file for divorce in Circuit Court if either party should wish to do so.

Separate Maintenance and Divorce from “bed and board”

Virginia also offers a Divorce from “bed and board” (also referred to as a divorce a mensa et thoro). Such a divorce is largely similar to an “absolute divorce” (also referred to as a divorce a vinculo matrimonii) which is the kind of divorce that most people think about when they think “divorce.” However, in a bed and board divorce the bonds of matrimony are not fully dissolved in that neither party is permitted to remarry in a divorce a mensa et thoro.

Another option is what is referred to as a suit for “separate maintenance.” In such a suit, the spouse filing this action is asking for a court order requiring the other spouse to pay financial support – but not for a divorceIn this way it is much like filing a petition for spousal support in Juvenile Court as referenced above.

For a spouse contemplating a separation (or faced with a spouse who is), the options for moving forward are varied and complex. Each  possible choice has its own particular requirements, as well as pros and cons. As with most complex legal issues, seeking advice from an experienced attorney before taking a first step is always recommended.


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