A Step-by-Step Approach to Begin the Legal Separation Process in Virginia

The Concept of Legal Separation in Virginia

Legal separation is an often overlooked but important step before filing for divorce. The concept of legal separation is straightforward, yet holds significant implications for your rights and responsibilities in the eyes of the law. In Virginia, the law differentiates between separation and divorce, and the two are not the same. Often, couples will choose to separate prior to filing for divorce, as a legal separation carries many of the same rights and responsibilities as a divorce while still leaving the door open to reconciliation.
In the event of a legal separation, the spouses continue to be legally married, but a separation agreement or court order dictates the issues of property division, spousal support, child custody and visitation, and child support. A legal separation affords the parties some, but not all, of the protection of a divorce.
The most commonly cited reason for separating before filing for divorce is one or both spouses’ unwillingness to be permanently divorced. This holds particularly true where there are minor children , and parenting time and custodial arrangements have not been fully established. Immigration status, the possibility of a reconciliation, benefits packages or retirement funds that would be affected by a divorce, and religious differences may also contribute to the decision to legally separate rather than divorce. Legal separation is not mandatory in Virginia prior to obtaining a divorce. Virginia offers a prerequisite requirement for those seeking absolute divorce: A party must have been separated and living apart for one year prior to the divorce being filed with the court (six months if there are no children of the marriage). Additionally, in certain fault-based divorce situations, there is no separation requirement. There is no legal separation in Virginia. The parties must agree to a separation period prior to filing for divorce.

Who Can Legally Separate in Virginia?

The eligibility criteria for obtaining a legal separation in Virginia is that you or your spouse have been a resident of Virginia for at least six (6) months immediately preceding the filing of your initial papers with the court. Either you or your spouse must have lived in the particular judicial circuit or city where you are filing for the previous six (6) months. Basically, if you or your spouse has not been a resident for the requisite amount of time then the courts will not have jurisdiction over your case and will be unable to grant you a legal separation. In order to establish residency the spouse filing for legal separation must show proof that he or she has legally established residence and intent to remain in Virginia by providing the court with documentary proof of domicile.
Other important eligibility requirements for a legal separation are that you and your spouse must have been married for at least a year prior to filing for separation and that you and your spouse must satisfy the separation period requirements for a no fault divorce for at least a year. Virginia law requires that you and your spouse live separate and apart without any cohabitation or resumption of marital cohabitation for at least one year before filing for a no fault divorce. A court may waive this requirement only if the parties have entered into a written agreement signed by both parties that resolves the issues of property and support between them.

Filing the Legal Separation Request

The process of filing for legal separation in Virginia is fairly straightforward. If you are filing on your own, the steps below will help to guide you through the process. Note that this section does not provide information regarding separation agreements. These agreements are drafted by attorneys and filed with the court. The number of copies required will vary based on jurisdiction.
First, you will need to file a Complaint, which is the form that states the reason you are applying for a legal separation and what your requests are. This form is made available by the Circuit Court Clerk’s Office for the jurisdiction in which you live. There are also attorneys that can prepare these documents for you for a fee. If your spouse and you are in agreement about the separation, you may also be able to reach an agreement regarding alimony, child support, and custody matters that you can file with the court. These documents used to be called Separation Agreements but are now called Property Settlement Agreements. You will also need to file a recent financial statement. This document will require you to provide specific information about your finances, so to reduce any issues, it would give you an advantage to complete the form before you go to the Clerk’s office. You should also obtain a Certificate of Compliance with Rule 1:18 which simply requires that the party filing the separation file a domestic relations case history form within ten (10) days. This form is available on the Virginia courts website. It is also recommended you obtain a Case Information Sheet which is also available on the Virginia courts website. Lastly, if your spouse is in prison, restricted to an institution for the mentally ill or is a mental incompetent, you might need to file the Affidavit Regarding Incarceration of Defendant.
Once you have completed the appropriate paperwork, you will file it with the Clerk’s Office in the Circuit Court of the jurisdiction in which you or your spouse file for divorce. When completing the paperwork, pay close attention to the mistakes of omission and make sure you sign and date all forms. You will then pay the associated filing fees, which are determined by the jurisdiction in which you and your spouse reside. Filing fees can be found on the Virginia Courts website. Following your filing, you will receive a case number. Make sure to write down that number and keep it in a safe place as you will need that for future correspondence with the court. It may also be advisable to make an electronic copy of the paperwork using a scanner or other tangible object that can be scanned electronically. The Clerk’s Office will time-stamp the paperwork that you filed with them and send notice of your filing to your spouse. Once you receive notice from the court of your scheduled hearing, you should send your spouse a copy of the notice and any other related material regarding the hearing. There are several different ways that you can file for divorce and separate from your spouse. If in doubt, seek legal advice; the small fee you may have to pay to speak with a qualified attorney could save you a dangerous mistake.

Think About the Following Before Submitting a Legal Separation Request

When a couple decides to legally separate, there are a few considerations to keep in mind before filing. These factors fall primarily into financial, legal, and personal categories.
Financially, you need to be cognizant of the financial responsibilities that go along with separation. You should take stock of all assets and liabilities, to understand what it’s going to take to divide up property, and what sort of responsibility for debt, if any, will fall to you. In some cases, it’s advisable to make a household budget to determine whether or not either of you can afford to live separately. In the worst case scenario, it may cost you more individually to live apart than to transition to a somewhat difficult arrangement. Your lawyer can help you out with this process.
Legally, you’ll want to understand the full scope of the legal implications of separation . Although separation is usually the first step before divorce in Virginia, it doesn’t necessarily guarantee that your case will wind up before a judge if both parties don’t want a divorce. However, it does take time and money unto itself. It’s also advisable to discuss any agreements made during the separation period, concerning anything like alimony, child support, custody, property division and any other issues that may arise over those months. A lawyer can help protect your interests and draw up a legally binding document if needed.
Finally, there are essential personal factors to consider, as well. It may be wise to search deep within yourself and talk to trusted friends, family members and possibly a therapist about the reason for separation. If there are changes that need to be made with either party, understand how important those are to navigating the prospects of future reconciliation. Again, a lawyer can help you understand your options with your spouse and determine the best route for both parties.

Your Legal Rights and Responsibilities when Separating

During the legally recognized separation in Virginia, both parties continue to have rights and obligations arising from the marriage. First, just because a husband and wife are living separate and apart does not mean that the divorce has been filed or will be filed. Both parties are still expected to esteem the relationship, or the intentions of the relationship. Adultery and abandonment can sever the bonds of the marriage as a matter of law but even then, this has no effect on the rights of the parties until all the rights and obligations have been settled. Therefore, same as if you were still living together, if you earn income then you owe a spousal support obligation pursuant to the amount earned. If you own property together it belongs to both of you until the property is equitably divided. If you are in need, and your spouse can provide it, then you may request spousal support in a case.
Of course, if kids have been born and are living with Mom or Dad, there are child support guidelines that apply in Virginia. Most of the time, these guidelines are abided by. Even if one party is wealthy and one party is poor, the guidelines still apply. Both parties have the right to spend time with the child(ren) after separation. Each party has an obligation to support the child while living independent from the other.
Both parties have the right to file for divorce. However, if there is a crime that severs the marriage as a matter of law, such as abandonment/adultery, then it may be more difficult for that party to be awarded more than half the marital estate.
Most importantly, both parties have the right to mediate the issues – if the other doesn’t deal in good faith, the good faith party is likely to walk away from an ongoing fight with some relief or reward. A party has an obligation to mediate the issues in good faith and work towards a settlement. There is no guarantee that anyone gets what they want. If you are lucky, you get 50% of what you want.

Resources and Legal Aid

If you are considering filing for legal separation in Virginia, you may wish to consult with a family law attorney who is licensed to practice in Virginia. The Virginia State Bar website offers a resource guide for finding a private attorney, including an attorney referral service.
Legal Aid societies provide free or reduced-cost legal services to those residents facing financial hardship. Types of cases they take vary by location, so it depends on where you live. To find the Legal Aid office nearest you, visit the Legal Aid Society of Virginia. They have a comprehensive guide to legal aid societies statewide.
A number of online resources can help you get started , such as the Virginia Judicial System. Use the Resources and Services tab in the menu bar to find guides to family law forms and divorce. Under the Resources tab, click on the Self-Help menu item.
The Virginia Collaborative Professionals is a collaboration of lawyers and other professionals, such as mental health providers and certified financial planners, to help provide an alternative to litigated divorce. The organization takes a holistic, five-phase approach to help couples divorce. You can use the Find a Collaborative Professional search tool to find a nearby provider.
If you are in need of immediate personal assistance, your local church may have resources to assist you in any area of later life marriage – from providing connection and friendship, to counseling and even transitional housing if necessary.