Establishing a Date of Separation in Your Virginia Divorce

By: John Whitbeck

[7.24.2020] If your marriage has broken down and you feel it is past the point of no return, you may be considering divorce. Virginia allows for at-fault divorce filings based on adultery, abuse, cruelty, but these grounds can be complicated to prove. If you are not successful in proving them, you will need to proceed with a no-fault divorce. And, to do so requires living apart for a certain amount of time. To do this, you need to establish a date of separation so the clock can start ticking.

Not all marriages come crashing down in a single moment. The breakdown can occur over a long time, which means establishing the separation date can be even more challenging. You may not realize how important establishing a separation date can be in these situations.

Date of Separation

The date of the separation will mark the start of the divorce, according to Virginia law. You can file for divorce after you have been separated for a year if you have children, or it’s only six months if you have no children and have a signed marital settlement agreement. There must be some action that triggers the countdown clock to start, which your divorce attorney will use as the date of separation.

Some elements of the divorce will utilize what you use to mark the separation date, including the property settlement agreement or a separation agreement. These qualify because you both sign them, stating you have separated as of a specific date. If one spouse moves out and declares he or she wants a divorce, that will be the date you can use. However, if the spouse who moves out comes back, then moves out again, you may not be able to use the initial date if there was a reconciliation.

What Happens When You Can’t Afford to Leave?

In some situations, you cannot afford to leave the marital home, or you are trying to remain under one roof for your children. In this case, you need to make your intentions known, and it should be crystal clear that you intend to separate. Ways you can do this include moving out of the same bedroom, not having sex with your spouse, putting them on notice you plan to file for divorce, and you shouldn’t do anything to help your spouse, like cooking for him or her or shopping for them, etc.

If you have children, you can interact with each other for things associated with a family function, but other than that, you should function as completely separate people. In cases like this, the date you move from the marital bedroom would be the date of separation.

Spousal Support Payments During Separation

If you and your spouse separated and you send him or her payments during this period of time, that can also prove that you are apart. You need to let your divorce attorney know the date you consider to be the separation date and provide witness names if need be as well. The court can count these payments toward any durational support they would award.

Contact a Virginia Divorce Attorney Today

If you need assistance with a divorce in Virginia, contact WhitbeckBennett by calling 800-516-3964 or email clientservices@wblaws.com.

Related: Divorce