Do I Need to Have Physical Separation from My Spouse Before I Can Divorce?

Divorce can be an emotionally taxing time for couples. Although you may be ready to move on, what does the law say about separating from your spouse and finding your equilibrium again?

At Pincus Goodman, P.C., our legal team wants to help you address some of the most common hurdles couples face as they attempt to divorce. One of those hurdles is physical separation. Is it a requirement for divorce in Virginia? Do you need to move out to be able to file for divorce? Our legal team explains what you need to know about physical separation before divorce.

Does Virginia Require Separation Before a Divorce?

There are numerous reasons a couple may want to file for divorce. Virginia allows couples to file on no-fault and fault-based grounds. During a fault-based divorce, a spouse must prove that their partner engaged in misconduct during their marriage which can include:

• Adultery
• Sodomy or buggery committed outside the marriage
• Conviction of a felony offense after marriage
• Willful desertion or abandonment for at least one year
• Cruelty

Couples may also file for a no-fault divorce in cases where the marriage is not working for them any longer, often referred to as irreconcilable differences. However, to qualify for a no-fault divorce in Virginia, partners must prove that they have lived separately continuously for at least one year or six months for couples without minor children.

The most straightforward definition of “living separately” is for you and your spouse to live in two separate locations for the year or six months prior to your divorce. That also means you don’t have sex for that period. While it is possible to be “living separately” under the same roof, that arrangement makes it much more difficult to prove that you’re separate.

If you separate while you’re under the same roof, you must live in separate rooms, stop having sex, tell your friends and family you’re separated, stop going to family functions together, stop exchanging gifts, and stop shopping, cooking, cleaning, and doing laundry for each other. You should have separate bank accounts. Someone you know should visit the residence on a regular basis so they can attest to your separate living arrangements under oath.

In addition to living separately, to be eligible to file for divorce in Virginia, one of you must be a legal resident of the Commonwealth for at least six months before filing.

The Realities of Separation

While Virginia requires partners to live apart before a divorce can be finalized, Virginia doesn’t recognize “legal separation.” The Commonwealth only recognizes that you are married or divorced. There is no in-between. You may be required to live separately, but there are potential consequences you can face if you move forward with your life too quickly by starting a new relationship before your old one is officially over.

Engaging in sexual relations with other people while living apart from your spouse can come back to haunt you. Technically, sex with someone other than your husband or wife is adultery and a Class 4 misdemeanor in Virginia. Although criminal prosecution is rare, it is a possibility.

Adultery is also one of the fault-based grounds for divorce. Engaging in sex with someone else, even when you are nearly divorced from your partner, can cause legal difficulties. Evidence of adultery can potentially bar you from spousal support and may impact how a judge divides the marital property.

Get Help from an Experienced Virginia Divorce Attorney Today

Navigating the ins and outs of divorce in Virginia can be challenging. Thankfully, you don’t have to move forward with divorce alone. Pincus Goodman, P.C.’s compassionate legal team can review your situation and outline your legal options in an open and supportive environment.

Get the help you need today. Contact our office at (757) 301-9634 to arrange for a confidential legal case review.