What is Legal Separation, and Why is it Important?
What is legal separation?
Separation occurs when a couple stops living together as married spouses. In the Commonwealth of Virginia, this can occur before you sign a Separation Agreement.
To be considered separated, you need to prove two points:
- That you are, in fact, physically separated. This usually happens when one spouse moves out of the home.
- Intention, which means that one spouse needs to have formed the intention that the marriage is over and there is no chance of reconciliation. Example – when a spouse moves out, but the parties are attempting marriage counseling; three months later, one spouse decides they have had enough – that becomes the date of separation because the intention to separate now coincides with the physical separation.
Now, it is possible to live separate and apart within the same home. While living in the same house can be stressful during separation, especially if children are involved, many choose to do so for financial or strategic reasons. For example, there may be fear that moving out will negatively affect their rights to the house or visitation rights with their children.
As much as people would like there to be, there is no magic list of actions to do or to avoid, and every jurisdiction looks at this issue differently. Generally, we tell our clients that if they want to live separate and apart in the same home to follow these guidelines:
- Do not have sex with your spouse
- Sleep in separate bedrooms
- Do not do the other’s laundry
- Do not cook for the other
- Don’t eat meals together
- Don’t watch TV together
- Don’t go places in public together
- Stop wearing your wedding rings
- Tell friends/family that you are separated
Why is it important to know your date of separation?
Most divorces are based upon the grounds of a one-year separation. The date of separation starts that clock ticking, and any income earned or any debts incurred AFTER the date of separation are separate and the other spouse has no entitlement or obligation.