In Virginia, there are several grounds for divorce, but it is most common for parties to obtain
a “no-fault” divorce based on having lived separate and apart for at least one year (or six
months if the parties do not have any children under the age of 18). A question frequently
asked is whether living “separate and apart” means that one party has to physically move
out of the marital home? The short answer is no.
The current Covid-19 health crisis and stay at home orders
have many people wondering
about their ability to separate while still living under the same roof. There are other reasons
why a couple, even though separated, may decide to continue to live under the same roof
until they are finally divorced, or for part of the separation period. This may be for financial
reasons; a party may require funds from the financial settlement in order to have the means
to move out and secure his or her own separate accommodation. Alternatively, the parties
may consider it to be in the best interests of their children to remain living under the same
roof, pending their final agreement on child custody arrangements, or certainty as to their
future living arrangements.
Parties can still separate while living under the same roof, but it is necessary to abide by the
following guidelines in order to establish and maintain a marital separation:
Verbally establish your decision to separate permanently from your spouse. It is also
a good idea to memorialize this decision in writing or email to your spouse.
Have separate bedrooms; remove all of your clothes and personal items into your
own separate bedroom, and use a separate bathroom if available.
Do not have any romantic or sexual activity with your spouse.
Stop wearing your wedding rings.
Shop for your own food and prepare your own meals independently from your
spouse.
Do not eat meals together with your spouse.
Do not run any errands or do any chores for your spouse, such as laundry, and
likewise do not ask your spouse to do the same for you.
Establish separate bank accounts from your spouse and separate finances to the
extent possible.
Do not socialize together.
Do not celebrate holidays together or attend each other’s family gatherings.
Do not attend church or other places of worship together.
If you have minor children, interact as parents only where strictly necessary from the
children’s perspective, and for their well-being.
Stop all gift-giving with your spouse.
Make it known to relatives and close friends that you are separated from your
spouse despite living in the same home (i.e., tell them that you and your spouse
intend to divorce, have moved into separate bedrooms, and plan to move to
separate residences as soon as possible).
Have a third party come to your home regularly so that they personally observe the
fact that you have established a separation in the home.
Be prepared to explain the reason(s) for remaining under the same roof (for
example, financial limitations, or to ease your children’s transition to their parents’
separation).
Parties are encouraged to use the separation period to negotiate and finalize a Marital
Settlement Agreement, resolving all matters arising from their marriage such as the division
of their assets and liabilities, spousal and child support, and the custody arrangements for
their children. Once this Agreement is in place and the required separation period has
expired, the process for then obtaining a no-fault divorce is quite simple.
If you have questions about separation or divorce, or how to commence a separation while
still living with your spouse, contact MDMB, PLLC for a consultation.
