Legal Question in Family Law in Virginia

In principle, it is simple, but there can be complications.

The legal test is to live separate and apart, without cohabitation and without hope of reconciliation, for at least one year.

That means in the usual situation that the spouses should live in different residences, and work as much as possible (it will not be possible completely without completing a divorce) to maintain separate finances. For example, create a separate bank account, open separate credit card accounts in your own name, maintain your own utility accounts, etc.

It would be a good idea to document that you made some attempt at reconciliation, either having a witness or a record that you attended some marriage counseling.

None of these things are strictly required. The court will look at the overall situation. All of these things are factors that paint a picture of the overall situation that you are living separate and apart. It is not just one factor but the total appearance of the situation.

Now, there is supposed to be no cohabitation. That means if you live separate and apart but then you are overcome with desire and you and spouse spend a torrid weekend at a Bed and Breakfast in Annapolis in bed all weekend barely coming up for air, then the separate and apart has been broken up to that point.

In reality, however, a court can only act on the facts presented to the court.

In reality, when a divorce is on the horizon, both parties usually want or accept that there will be a divorce.

So usually nobody objects or challenges these details. So most of the time it is one party alleging that they have lived separate and apart and the other party is silent and does not object.

Of course there are some divorces that are hotly contested in every detail.

Complications arise when spouses cannot afford to live in different residences. It is possible to live in the same house but not live together. That is spouses live in different rooms, do not sleep together, designate a different part of the house as "theirs" because they cannot afford to pay for two different houses, especially when their finances are still tied up.

The totality of the situation is important, but it is harder to prove that spouses are really living separate lives if they are still living in the same residence.

In any situation, there is a real difference between what is true and what you can prove. You should include friends and/or family in your situation and plans. Sure that is delicate. But in a divorce you must have a witness to testify with you. So if you don't tell anyone about your circumstances, you wont' have any witnesses. So try to find ways to document what you are doing, including sharing with a witness what your living situation is and how you have separated