Legal Question in Family Law in Virginia

Re: Separation

Many judges will require that you actually be living in separate residences. Therefore, one of you may have to leave the marital residence. Before you leave you would want to make sure that you spouse would not try to treat it as desertion of the marriage. If you choose this option, you could try getting an agreement in writing prior to leaving stating that any divorce will be on no-fault length of separation grounds (6 months with no kids and a separation agreement, 1 year with kids or with no separation agreement). If you are leaving kids behind you will have to consider the potential impact your leaving may have on custody and visitation issues.

Some judges will deem the parties to be living separate even if they are still living in the same residence but evidence will typically have to be introduced regarding the living arrangement and the judge will have to make a determination regarding whether it is sufficient. Things a judge may look at include, as examples, the following: (1) separate bedrooms (if possible separate living spaces, i.e. one in the basement and one upstairs); (2) no sharing of household chores (i.e. no doing laundry for each other, no cooking for each other, no cleaning up after the other); (3) no acting as a family (i.e. not eating meals together or doing family types of activities together); (4) no intimate or sexual relations; (5) witnesses to the living arrangement; and (6) a clear intention to be living separate and apart and for the separation to be permanent. However, even with all of these things being done, some judges still would not deem the parties to be living separate and apart.

I hope this helps. Good luck!