man and woman separated

Separation is a nuanced status, particularly in Virginia. Understanding the legal and practical aspects of separation is essential for couples considering divorce. In many states, a couple can be “legally separated” which is where they stay married but their assets are divided. Virginia however, is not a state where separation is a legal status. There are still ways to separate and protect yourself though.

Legal Grounds for Divorce in Virginia

Virginia law allows for no-fault divorce on the grounds of living “separate and apart” for a specified period. Couples can file for divorce if they have lived separate and apart without interruption for one year. However, if they have a separation agreement in place and no minor children, they can file for divorce after six months of separation.

Unlike many states, Virginia does not have a procedure for obtaining a legal separation. Couples usually transition from being married to living apart, with or without a separation agreement, to getting a divorce. Virginia’s closest approximation to legal separation is a “divorce from bed and board,” which is limited to fault-based cases and rarely granted.

Living Separate and Apart

To qualify for a divorce based on separation in Virginia, couples must meet two criteria: physical separation and the intent of at least one party that the separation will be permanent.

Physical separation usually involves one party moving out of the marital residence. However, Virginia law allows spouses to live separate and apart under the same roof, but strict guidelines must be followed. Evidence of physical separation is necessary, and the date of separation is a factual determination.

Intent is also essential. One party must have decided that the marriage is over and communicated that fact to their spouse. This can be done through various means, including written communication or a verbal agreement.

Dating While Separated

Dating while separated is not a crime in Virginia, but adultery remains grounds for divorce. Dating can also impact custody and visitation determinations, particularly when children are involved. It’s essential to consider the potential consequences before starting a new relationship during the separation period.

Distinguishing Between Separation and Desertion

Virginia courts distinguish between separation and desertion based on the specific behavior of the parties. Desertion occurs when one party ceases to perform their marital duties, such as providing financial support or contributing to marital bills or debts, and providing emotional or physical support.

Separation, on the other hand, involves living apart while still operating under the rules and standards of the marriage. Terms of separation are discussed and agreed upon, whereas desertion is typically a unilateral action by one party, leaving the other party with all marital duties and obligations.

Separation Agreements

Separation agreements, also known as marital settlement agreements or property settlement agreements, are contracts used to settle the rights, interests, and obligations of separating or divorcing parties.

These agreements offer several benefits, including:

  • Resolving outstanding issues without expensive and time-consuming litigation
  • Allowing parties greater control over the settlement process
  • Precluding the need for fault-based divorce by allowing parties to file for no-fault divorce after the appropriate separation period
  • Shortening the separation time required for no-fault divorce, especially for couples with no minor children

Limitations of Separation Agreements

While separation agreements offer many benefits, they are limited in several ways. It’s essential to understand these limitations before entering into an agreement:

  • Both parties must voluntarily agree to the terms
  • The agreement is not a court order until incorporated into one
  • Provisions related to child custody and support may be unenforceable under Virginia law

Do You Need an Attorney for a Separation Agreement?

It’s crucial to consult with a family law attorney before signing a separation agreement. Online form agreements may not protect your interests adequately, leaving you vulnerable to unfavorable outcomes. A family law attorney in Manassas can ensure that the agreement is fair and enforceable, protecting your rights under Virginia law.

Setting Aside a Separation Agreement

Once a separation agreement is signed, it is challenging to set aside. Virginia law allows separation agreements to be set aside only under limited circumstances, such as undue influence. It’s essential to seek legal counsel before signing an agreement to avoid potential legal challenges in the future.

By hao

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