By David L. Duff of Duff & Kronfeld, P.C. posted in Family Law on Monday, September 26, 2016.
Virginia law allows for a divorce based upon two parties having lived separate and apart from each other, continuously and without any “marital cohabitation,” for a period of one year (12 months). This time requirement is reduced to six (6) months if two criteria are met: (1) the parties have no minor children; and (2) the parties have executed a written settlement agreement resolving all property and support issues.
While the separation contemplated by this “no-fault” grounds for divorce generally involves one spouse physically vacating the marital home, such is not always the case. Often out of sheer stubbornness (“It’s my house, and I’m not leaving”), or strategically (“I’m not leaving because then you’ll have the upper hand”), or due to financial constraints (“We cannot afford the expense of two separate households”), two warring spouses will decide to separate from each other, but continue living under the same roof. Such a separation is recognized by the courts, and will provide the necessary grounds for a divorce, PROVIDED that certain requirements are met.
First, and most importantly, there must be a complete ending of all “marital cohabitation.” This extends far beyond merely having sexual relations, or being otherwise intimate, with each other. The two separating spouses must refrain from doing anything “as husband and wife.” They must make every effort to truly lead “separate lives,” notwithstanding the fact that they continue to live in the same house.
This lack of marital cohabitation means that the two spouses should not attend social events together; they must occupy different bedrooms within the house, and, if feasible, the bedrooms should be on different levels of the house; such mundane and everyday acts as cooking, grocery shopping, eating meals, cleaning, and doing laundry, should never be shared, but rather, done separately by each spouse.
Secondly, and equally important, is the legal requirement that you be able to independently prove the fact of living separate and apart, while staying in the same house. A written statement, at the very outset, signed by both spouses, confirming their intent to separate, and end all marital cohabitation, is helpful, but not 100% determinative. You should also be sure to inform a trusted friend or family member of the separation; and, have that same friend or family member actually visit your house several times during the period of separation, so that he or she can testify to the separate arrangements based upon personal observations.
Of course, living in the same house while pursuing a divorce will be somewhat “artificial,” and often quite stressful, particularly when children are involved. However, financial constraints may very well dictate such an arrangement as being the only viable way of obtaining grounds for a divorce.
If you have questions about separation and divorce, contact an attorney at The Duff Law Firm for a complimentary, 30-minute consultation. (703) 591-7475