I have been married to my husband for only 3 years. We unfortunately can't live in separate homes due to financial reasons. How do I begin the process of filing for in house separation?
We have a 2 year old son and are willing to agree on custody. We don't want to go to court and get lawyers, we just want to file for in house separation, the year of separation, and then finalize it with divorce. Thank you for your time.
I completely agree with Attorney Bice's excellent response to your question.
There is no such thing as a "legal separation" in Virginia. Under Virginia law, you are either married (even if married and living separate and apart) or not married. The closest thing that we have to a legal separation in Virginia is what is known as a divorce a mensa et thoro, which is what a court may grant in the case of divorce filed on marital fault grounds (other than adultery) where the parties have NOT also lived separate and apart for a period of at least one year. A divorce a mensa thoro is not an absolute divorce, however, so neither party can remarry. Once the parties have lived separate and apart for at least one year, then either one may petition the court to merge the divorce a mensa et thoro into a divorce a vinculo matrimonii (i.e., an absolute divorce).
There is an option available to couples who have NO minor children to file for an absolute divorce after only 6 months of living separate and apart IF they also have a written settlement agreement between them that resolves all issues of property and support arising out of the marital relationship. However, since you state that you have a 2 year old child together, this option would not be available to you.
While it is possible to live separate and apart while under the same roof in Virginia, as previous counsel has mentioned, these types of cases require additional proof to be provided to the court than in the typical living under separate roofs cases. It is also important to understand that a divorce cannot be granted in Virginia without sufficient corroborating evidence from someone other than the parties themselves. What this means in plain language is that you will need to have someone other than your spouse who can testify to the court (either ore tenus or in a deposition) that your allegations of living separate and apart are factually true. So, in cases of people living separate and apart in the same dwelling, someone who would be willing to testify for you needs to regularly visit (i.e., be in a position to know these facts) -- this could be a relative, a neighbor, a close friend, the babysitter, the housekeeper, etc.
Additional evidence of having lived separate and apart, with the intent that the separation be a permanent one (which is also a requirement for divorce in VA), can be established by having a notarized written settlement agreement (commonly referred to by attorneys as a PSA or MSA) signed and dated by the parties. Having a signed PSA that resolves all issues of custody/visitation, child support, spousal support, and division of marital assets and debts will also greatly facilitate the divorce proceedings (i.e., fast-track the divorce).
I would not recommend that anyone draft their own PSA nor attempt to draft their own divorce decree. There is very specific language and statutory notices that must be included in a final decree of divorce, particularly if there is any provision for child and/or spousal support (including provisions for one party to provide for other forms of maintenance, such as insurance coverage/healthcare). Additionally, there are new statutory changes that go into effect on July 1st of this year, one of which requires explicit notice language be included in ALL divorce decrees entered on or after July 1st concerning designations for death benefits (even if there aren't any in a particular case).
It is also important to keep in mind that in the absence of a mutual agreement by the parties to amend a written settlement agreement to correct unintended consequences or mistakes in their PSA, the court lacks the authority to fix it for you later. Pursuant to Va. Code Section 20-109, the court cannot enter any orders that are contrary to the terms of a written settlement agreement between the parties.
For all of these reasons and more, you should get an attorney to assist you -- both with your PSA and your divorce.
What you are requesting does not actually exist in the form that you are seeking. Just the same, there are several avenues to follow. The first is to simply agree in writing that you are separated. This must be coupled with comporting your behavior to living as if separated. No joint funds, meals, sleeping arrangements, or vacations are a few features.
While the desire to avoid using an attorney due to cost is understandable, in the end the process will be much easier if you have the advice and guidance of a family law attorney. Different jurisdictions have very different approaches to accepting the premise of living together while asserting the status of being separated.
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