Legal Separation in Virginia Explained
In Virginia, a legal separation refers to a court order that outlines the rights and obligations of one spouse to the other. In a legal separation, spouses separate their financial and legal affairs from each other and begin to live as separate and distinct people, yet they remain legally married to each other.
Some people can live separately without a court order, but if there are disputes over who pays what bills, the authority to make decisions on behalf of the other, or divide the property and debt than going through the court is often necessary. Legal separation is an alternative to divorce that some people view as an appropriate step before finalizing the end of the marriage. If a couple does not want to get a divorce due to religious reasons , or does not want to get a divorce for other reasons, legal separation may be the answer. Some people may not be entitled to divorce in Virginia due to lack of grounds. If you are not entitled to a divorce, you can file a separation agreement. Legal separation allows both parties to pursue their independence from the other without finality. However, some of the same issues that must be dealt with in a divorce also must be dealt with in a separation, including custody, visitation, child support, spousal support, and division of property and debt.
How to Legally Separate in Virginia
Here are some steps on how to begin the process of separation.
Step One: Sign a Separation Agreement
A separation agreement is a written contract between the parties that sets forth the parties’ agreement on issues of support, custody, or property division. While not a legal requirement for separation, it is highly recommended to have a separation agreement. A separation agreement is a legally binding contract, and can be enforced in court like any other contract. In the absence of such an agreement, Virginia Courts will grant a divorce after the parties have lived apart for one year (or six months if there are no minor children and the parties were married for less than 10 years). However, the divorce is granted subject to equitable distribution of marital property and debts, and spousal support is not addressed unless there is a motion to reserve the right to ask the court for spousal support.
Step Two: File for Divorce
If you have a signed separation agreement, most people want to file for divorce as soon as possible. You can file for divorce in the circuit court of jurisdiction in your county where at least one spouse resides as long as you have separated at least 1 year (or if you have been married less than 10 years and have no minor children of the marriage you can file after 6 months). Each party must sign and notarize a Virginia Court form called the Verified Complaint, and then the complaint must be filed with the circuit court and a filing fee must be paid. Circuit Court fees vary in each jurisdiction, but they are typically at least $158 per party.
Virginia is considered a "no-fault" state. Essentially, this means that the precise reason for the divorce (referred to as the "grounds for divorce") does not need to be established. The only grounds required is the parties have lived separate and apart without any cohabitation for at least one year (or six months if there are no minor children and they were married less than 10 years). Once the divorce complaint is filed with the Court, it must be served upon the other spouse. This is usually accomplished a by a Sheriff’s deputy in the county where the divorce complaint is filed and where the defendant resides. If the defendant/other spouse is evasive, there are other ways to obtain service such as by publication in certain circumstances.
Step Three: Wait for the Waiting Period to Lapse
Once the Complaint is filed, you have to wait for the required waiting period as discussed above. Once the waiting period ends, you can finalize the divorce, meaning you and your divorce lawyer prepare all of the required documents for entry of final decree of divorce, including a Property Settlement Agreement or a Pleading confirming no Property Settlement has been executed as of the date of hearing. After the hearing, a Final Decree of Divorce is called in front of a judge and signed by the judge. If you have minor children of the marriage, a child support guidelines worksheet is required and the Court will decide custody and visitation. If there is no Property Settlement Agreement, the Court will make an award or equitable distribution of the parties’ debt and/or property.
If you have been through the process or are currently going through the process, please feel free to share your story with us.
Legal Considerations of a Separation Agreement
In Virginia, a legal separation agreement is a written contract between the spouses which is signed by both spouses. In general, the agreement must contain the signatures of both parties and be notarized. However, if the agreement is later used to confirm a divorce, your attorney can have the agreement included in the final decree of divorce and the signature requirement is waived.
The most important elements that will be addressed in your separation agreement will be financial support and property division. Generally, once you sign a separation agreement, the agreement is enforceable by the Circuit Court if one party fails to comply with its terms. Do not assume that if there are no enforceable terms in the agreement that the terms cannot be enforced. You could be right, but you could be wrong. An experienced lawyer will help you enforce an agreement that has not been signed or enforce an agreement that is not enforceable, even if it was signed. Arguments from one spouse that the agreement is not enforceable because there was never any intention to actually sign the agreement will probably be met with skepticism from a Circuit Court judge. One spouse’s reluctance to sign an agreement does not make it unenforceable. At the end of the day, the Circuit Court will have discretion to determine the intent of the parties and enforceability of the agreement. It is safer to get it signed.
It is possible that the terms of your agreement will not be enforceable in future proceedings even if the terms are set out in a signed agreement if your agreement does not comply with Virginia law. Here are some general areas where an agreement can go wrong:
A legal separation agreement is almost always the first step in the process of a separation or divorce. A properly written separation agreement will spell out each spouse’s responsibilities and entitlements in detail. This enables you to avoid expensive changes down the road if circumstances change.
Remember, spouses are not legally required to enter into written agreements, but written separation agreements are highly respected by Virginia courts. The best advice is to work with a seasoned lawyer, create a separation agreement, and get it done!
When a Lawyer Can Help with Legal Separation
The legal separation can become a lengthy period of time, with legal issues still pending, and you and your spouse trying to figure out your future. Sources of conflict that arise during this time period may ultimately be what causes the spouses to move toward divorce. It is important to know your rights and entitlements during this separation period, and be able to pursue those rights and entitlements to avoid unnecessary conflict with your spouse.
A good lawyer can guide you on all of these issues, recommend trusted financial advisers who can help assist while you are going through your separation period, and navigate throughout your separation process with the goal of moving you toward an eventual settlement or a trial if necessary.
Financial Issues in Legal Separation
In Virginia, while many of the substantive provisions governing your divorce would kick in the day after your separation to the very moment the Court issues your final decree in divorce. However, in addition to those issues which are addressed by statute, you will need to make financial choices, address short-term needs, and deal with emergent issues that arise in your life.
When you separate from your spouse, you are essentially living independently (out from under the protection of the law in terms of support) and that itself presents risks that you will need to address.
What about ownership of the house, bank accounts, and other financial accounts? How about other debts or joint credit cards? What about your will or designated beneficiaries on life insurance policies and retirement accounts? What if your spouse is threatening to spend all marital assets and refuse to "play nice" during the process of dividing the assets?
These issues and others are best discussed with an attorney so that you will have help and guidance navigating a separation.
The Effects of Legal Separation on Custody and Support
When it comes to separation, oftentimes parents are concerned about how this will affect their children. Will there be any impact on their relationship with their children? What is the best arrangement for the children from a psychological standpoint? A concept that guides the answer to many of these questions is one that most people have heard about, but don’t necessarily understand – the best interests of the children at issue.
The "best interests of the children" is a legal standard that is frequently used in cases concerning child custody and support. It is the general guideline that the court uses to determine how the custodial arrangement and the level of support should be decided. The best interests of the children is a way for the law to find a way to protect children while also ensuring that both parents continue to provide financially for their children. Some states will even allocate specific parenting time (schedules) for each parent while others may not.
If the parties are not legally bound to a specific schedule, then the parties generally work out their own parenting arrangement. If the parties have children together, then a child support order may be entered . A child support order will allow the court to establish a fixed amount that is to be paid periodically by the non-custodial parent to the custodial parent for the support of the minor children.
The court can also choose to enforce a written agreement between the parties if there is one, and there has not already been a provision established for custody, visitation or child support.
If there are no children of the marriage or the family, then before a court can grant a divorce, however, they must make sure that the property title issues are resolved. A decree of separation is therefore issued. When a decree of separation is issued, there are three significant issues considered: property, expenses, and spousal support.
If children are involved in the separation, parents can agree on the custody and support arrangements for the children. If the parties cannot agree, then they will ask the court to establish a schedule for the parties during the period of separation. Generally, the goal of the courts in these cases is to establish a fixed schedule for the parties on custody of the children while also employing the "best interests of the child" standard to maximize the cost benefits of each party.
Turning Separation into Divorce
If both spouses want to move forward with a divorce after some time has elapsed under the legal separation agreement, that’s not an issue, and the process and steps are the same as they would have been if the process was started right away. Under Virginia law, legally separated couples cannot remarry as long as they remain so, and they cannot cohabitate. Cohabitation invalidates the asset analysis and support provisions of the separation agreement.
If minor children are involved, they are still required to attend the Children’s Seminar that is part of the divorce process in Virginia. There is no waiting period from separation to divorce. The only steps that have to be taken after the separation agreement has been executed are the same as if no separation agreement had been entered. If a separation agreement has been executed, the court can incorporate the terms of that agreement into the divorce decree. If there are no children involved, and both spouses agree to the terms, an uncontested divorce can be obtained approximately four to eight months after the complaint is filed, with some exceptions. Virginia law does require spouses to end their marriages within one year after that one-year separation period, and if that does not occur, the couple must obtain a new separation agreement. If one of the parties doesn’t sign the new separation agreement, the other party can file for divorce immediately, with a consultation with an attorney recommended first. More often than not, however, in a situation where there are no minor children involved, and both parties want the divorce, no further period of separation is required.
Legal Separation Problems
The road to legal separation in Virginia can be fraught with challenges and obstacles that test the resilience of even the most amicable couples. These challenges not only have financial implications but also deeply affect the emotional landscape that you will have to navigate. However, you need not be a casualty of these tumultuous waters. With proper guidance, you can successfully maneuver through the complexities of the divorce process.
One of the most prevalent challenges is managing emotions. A legal separation may be a mutual agreement, but it often arises out of deep-seated problems that probably pushed the couple along the divorce track. A plethora of emotions—sadness, anger, loss, uncertainty—may bombard the couple. It’s essential to not only acknowledge these feelings but to be receptive to the transition. Understand that the reality of a legal separation is complex and often harder to accept than termination of the relationship. Speaking with a counselor or therapist can be very helpful for both parties. Ultimately, a skilled divorce attorney can mitigate your stress by legally separating your assets before the divorce process begins.
The emotional roller coaster of a legal separation can also take a toll on the finances of the couple. If one spouse is considerably more affluent than the other, then this imbalance becomes magnified upon legal separation. Often, legal separation entails living apart, which will incur multiple housing expenses—one for each party—and the cost of maintaining a dual standard of living. Sometimes this leads to a lifestyle creep that is prolonged and, thus, not a sustainable financial model. To avoid this pitfall, either the couple or the court must make the determination, subject to stay orders, on issues such as child custody, potential domestic support payments, and division of assets. At the same time, temporary child support, alimony, and other financial arrangements can be negotiated through a mutually agreed upon Separation Agreement.
If children are involved, they become the centerpiece of the legal separation. Thus, shielding them from the emotional turmoil and the uncertainty of their future is of paramount importance. Parents are overwhelmed with emotions during this phase, but it’s important to communicate, to not lose sight of what really matters—setting aside differences to focus on the well-being of the children. Every decision that is made should be based on how it will impact the children because parental conflict is a significant factor in the delay of reaching equitable final divorce settlement.
Legal separation may bring uncertainties for the future of the relationship, but it can also bring a path forward or an end in sight. It opens the door to contemplation and self-reflection. Premarital and marital counseling, as well as temporary living apart are important tools to help you and your spouse navigate this complicated purgatory. At the very least, a legal separation provides the comfort that a divorce is not an immediate reality and the marriage can still be saved.
Seeking Help and Support
Virginia Legal Aid Resources: Legal Aid of Virginia offers a "Live Chat" service to assist individuals seeking legal information or advice on their cases throughout the state. Call the toll-free number (866) LEGALVA to learn more about your legal options.
Religious Organizations: Moses Modell & Associates is a faith-based organization that provides support groups for men and women, as well as workshops, seminars, and other resources in which to grow both personally and spiritually .
Mental Health Services: Counseling consultations through the Richmond Behavioral Health Authority are available for anxiety, depression, relationship issues, trauma, or substance abuse. You can call at any time for assistance.
State and Local Support Groups: Virginia Support Groups provide peer-run, free of charge meetings to gain insight into a host of issues, from cancer survivor support groups to those grieving a loss.