Can You Be “Separated” and Living In the Same House With Your Spouse?

September 24
Written by Kristi Wooten

In Virginia, parties must be separated for a requisite period of time before being granted a divorce. The parties may be separated for six (6) months if there are no minor children of the marriage and the parties have an endorsed and fully-encompassing separation agreement that settles all matters, to include spousal support and distribution of assets and liabilities. If there are minor children and/or no fully encompassing agreement, then the parties must be separated for a period of twelve (12) months. Given the economic stressors of splitting one house into two, there has been a significant increase in “in-house separations,” meaning the parties live in the same house during their separation. To establish such a separation requires much more than simply sleeping in different bedrooms.

You must evidence to the Court that this separation existed, with at least the intent of one party, for the entire requisite separation period. This mean no “breaks” in the separation or the timeclock is reset and you need to wait longer. In determining whether there has been an in-house-separation, the Court may review several factors, which may include the following:

  • No sexual relationship
  • Separate bedrooms and living spaces
  • No vacations together
  • No community functions together (like church or parties)
  • No sharing of meals in the home
  • Not doing each other’s laundry
  • Not attending children’s extra-curricular activities together. This does not mean both parties cannot attend, but they should not ride nor sit together
  • Not wearing wedding rings
  • Removal of “family” photos from your office or work space
  • Separate bank accounts
  • No gifts to one another

In order to establish a separation, you must hold yourself out to the public as living separate lives. You will need an adult witness to testify and corroborate your separation. So, make sure you have a close friend or family member who knows when your separation commenced, that your separation continued, and that you intend for the separation to be permanent. If all or any portion of your separation period was an in-house-separation, then a Court may require a hearing on the issue to prove your eligibility for the divorce. The bottom line is that if you want to establish that you and your spouse are separated, you should cease all indicia of a marriage relationship.