Question: If a married couple has decided to separate and eventually divorce but does not have the means or ability to secure separate residences for themselves during the separation, or if they both refuse to vacate the marital home during the period of separation, will their continuing to live in the same house prevent them from getting their no-fault divorce finalized?

Answer: No, but only if they adhere to certain parameters while they continue to live together. The risk in doing so in a no-fault divorce is being able to establish a firm “date of separation” that commences the requisite 6-month or 1-year period of separation before a Virginia court can finalize the divorce.

Virginia law requires parties to a no-fault divorce proceeding to complete a certain period of separation (either 1 year or 6 months, depending on the circumstances) before being able to get their divorce finalized.* In some cases, one party to a no-fault divorce will contest the date of separation alleged by the other in their initial divorce filing. If it is a point of significant dispute and requires a judge to make the ultimate determination on what the parties’ actual date of separation should be for the purpose of their divorce, this can be a major setback if that determination finds the separation date to be later than originally alleged. Therefore, it is important that a spouse who plans to file for a no-fault divorce in Virginia is able to firmly and concretely establish—and prove, if necessary—what his/her date of separation is.

It seems logical to assume that, in order for two married persons to be considered “separated” under Virginia law, they cannot continue to reside under the same roof during that period. However, that is not necessarily true. In fact, spouses can continue to live in the marital residence and still be considered “separated” under Virginia law if they can strictly adhere to certain rules/parameters while they remain in the same home. Though doing so can be complicated and challenging on a number of levels, it is not impossible – as long as you are able to abide by these rules/parameters during the entire time you’re under the same roof.

These parameters include, but are not limited to, the following:

1. Generally, the spouses should not continue to sleep in the same bedroom if at all possible. Immediately upon becoming separated, one spouse should cease using the main/marital bedroom and relocate to another room or sleeping space in the home. If, for practical reasons, this is a legitimate impossibility (for instance, if the home only has two bedrooms, one for the spouses to share and one for the child(ren), and there is no other space in the residence for one spouse to use as his/her primary bedroom), then, as uncomfortable as it may be, one spouse should take efforts to sleep on the couch at night, at the very least. The ultimate goal in taking this step is to ensure that there can be no confusion or ambiguity as to whether the parties were continuing to live together and conduct themselves as a normal husband and wife would, instead of as a couple in the midst of separation for the purpose of an eventual divorce.

2. Be sure to inform friends and family (and/or co-workers, acquaintances, etc., if applicable) of the separation and intent to divorce. To be clear, this does not necessarily mean that one must tell every single person in his/her life of this sensitive personal information, but anyone with whom that type of intimate detail would normally be shared should also be informed of the separation and intent to get a divorce. This rule is relatively intuitive but think about it like this: if someone would normally share relevant life updates (like a job change, pregnancy announcement, hospitalization/injury, or other personal events) with certain family members, friends, co-workers, etc., then those same individuals should also be informed of the separation. The reason for this is that it looks disingenuous for one not to share this type of significant personal information with someone he/she normally would if the separation is authentic.

3. Stop wearing any wedding rings or other wedding jewelry, as this demonstrates to the outside world your intent to be separated.

4. Refrain from engaging in joint/couples’ activities together that would be considered romantic or give the appearance of a pending reconciliation. Examples include going to the movies together as a couple, attending children’s extracurricular activities/events as a single-family unit, traveling together (especially any leisure travel as a family), attending family or other group events/activities together, going to church/worship services together as a couple, and similar activities that give the outward appearance of a happy couple/family.

5. Separated spouses, whether residing under the same roof or not, should absolutely not, under any circumstances, engage in acts of sexual intimacy with one another during their period of separation, specifically, sexual intercourse. This is absolutely essential to preserving the period of separation, as an act of sexual intercourse between the separated parties will result in having to restart the clock, so to speak, on the period of separation before their divorce can be finalized.

6. Do not attend or participate in regular, ongoing marital or couples counseling. A married couple who regularly participates in marriage counseling sessions or other therapy that is intended to mend their broken relationship is generally not seen as being “separated”. Instead, this looks more like the couple is attempting to reconcile and work through their marital problems, not like they are on track for an eventual divorce. However, it is understandable that spouses who have decided to divorce but are forced to reside together for a period of up to one year may want to seek the guidance of a neutral third-party professional (such as a marriage counselor) to advise them on how to do so with as little conflict as possible, especially if there are minor children in the home with them. As long as it is clear both to the therapist and the other spouse that the purpose of such therapy if needed, is to mitigate ongoing conflict associated with the living situation and forthcoming divorce and NOT to overcome any marital problems that led to the separation, this can be doable, but be very careful in taking such an approach.

Additionally, the parties must demonstrate that although they are continuing to reside in the same home, they have lived separately and apart without any interruption or marital cohabitation for the requisite statutory period of either 6 months or 1 year.

Such interruptions include, but are not limited to, the following:

1. Having sexual intercourse with each other.

2. Continuing to share a marital bedroom when doing so is not necessary, as described earlier in this article.

3. Still acting like a married couple/happy family in public or amongst family and friends by engaging in normal family or couples’ activities.

4. Accepting or giving romantic gifts from/to a spouse. Naturally, purchasing nonessential luxury items for your spouse gives the appearance of a happy relationship, or at the very least, that the relationship is still romantic in nature. Doing so will look like you and your spouse are on the road to reconciliation or “working things out”, not that you are separated with the intent to divorce.

Any interruption to your period of separation restarts the clock and you will have to start all over again to reestablish either a 6-month or 1-year separation period, which can have far-reaching and significant effects on the division of marital property, your mental and emotional health and wellbeing, as well as the impact on any minor children being forced to endure a protracted and conflict-heavy separation of their parents. As such, it is essential to take the utmost caution when continuing to reside in the same home with a spouse during your period of separation.

For additional information and details regarding your separation and whether your living situation is adequate to establish a formal separation for your forthcoming divorce, please reach out to our attorneys.

* Please note that this period of separation is only applicable to no-fault divorces in Virginia. Should you or your spouse decide to file for divorce based on fault grounds (such as adultery, cruelty, desertion, etc.), this period of separation is not required under current Virginia law.

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Wehinmi Shekoni

Wehinmi Shekoni

Associate Attorney

Wehinmi A. Shekoni is an Associate Attorney with Whitbeck Bennett. She received her Juris Doctor from American University Washington College of Law with specific focus on Litigation, Intellectual Property and Trade Law. Ms. Shekoni previously worked as an Associate Attorney at the Hopkins Law Firm, where she represented clients in family law cases, and criminal law cases matters such as DUI, speeding, and reckless driving. She litigated and represented clients in divorce cases, custody and visitation cases, child and spousal support cases, enforcement cases, and protective orders. Ms. Shekoni has litigated and represented clients in multiple counties such as Prince William County, Fairfax County, Fauquier County, Loudoun County, Stafford County, and Fredrick/Warren County. Learn more about Wehinmi Shekoni here.