Separated but living together while getting divorced in Virginia? “Separation under the same roof” is a tricky topic – here’s what you need to know!

One of the most common questions we hear from women who are getting divorced in Virginia relates to the matter of being separated but living together with the soon-to-be-ex.

To be separated means one of the parties has left the marriage and presumably the marital home with the intent not to return. Thus, the short answer to "Can we be separated while living in the same house?" is no.

That being said, there are exceptions to this rule when a couple is divorcing in Virginia. Separation under the same roof may be a possibility under the Virginia laws that define cohabitation. Divorce lawyers in Virginia Beach understand the circumstances that leave open the door of possibility of an in-home separation. It's important that you realize what the risk of such a separation entails before undertaking such an endeavor.

Living separately within the same residence as your spouse can be very difficult to prove to a judge.

You may discover if you are getting divorced in Virginia that the judge will not accept "your separate under the same roof" status and tell you to come back after 1 year of living separately in your own residences. This could pose an added expense as well as a delay to your divorce process.

The reason for this warning is that it is clear that the Virginia courts do not favor "living in the same residence" separations, and most judges will not award a divorce relying on an in-home separation. Note: there are reported cases where judges have permitted separation under the same roof, provided that many, if not all, of the conditions indicated in the checklist below are followed.

Presentation counts when separated but living together: Confusing cohabitation, collusion, and public policy

In Virginia, "cohabitation" is living together as if married. This does not mean that one has to be having sex with one's partner in order to be deemed a family in the eyes of the law. Accordingly, because a married couple has not had intimacy for a while does not mean that the two aren't cohabiting. Thus, when you live together in a home, you are holding yourself out to the public essentially as a family, which is a contradiction of the element of "intent to separate."

Oftentimes, couples do not want their friends to know that they are getting separated or divorced, and the Commonwealth of Virginia essentially is saying that if you intend to be separated or are getting divorced in Virginia, you must present yourselves as being separated in order to obtain a divorce. You cannot appear to be married while claiming to be separated.

Furthermore, when you live together with your spouse, but claim you are separated, there is a great chance for "collusion" in the eyes of the court. Remember, it would be collusion if a husband and wife fraudulently claimed that they were separated, when in fact they were not.

Finally, the public policy of the Commonwealth of Virginia is to support the family and marriage. Thus, the Commonwealth, through the legislature and the courts, wants to make it more, rather than less, difficult to get divorced in Virginia. Accordingly, the intent to separate is not readily manifested in an in-home separation

Your Checklist to Being Separated but Living Together in Virginia

Below is your checklist of what you need to know when you are getting divorced in Virginia and separation under the same roof is unavoidable: 

• Use separate bedrooms.
• Do not engage in romantic or sexual intimacy.

• Each spouse should shop for his or her own food, prepare his or her own meals; should not shop for the other, including clothing and other necessities.
• Do not use the other spouse's food or other purchases.
• Do not eat meals together (exceptions: holidays or children's birthdays).
• Each spouse should be responsible for caring for his or her own space within the home.
• Each spouse should do his or her own laundry.
• Use a separate and secure computer and be VERY careful of how you use that computer.
• Use a separate and secure telephone/cell phone for personal and business calls.
• Establish separate checking accounts.
• Cease socializing together, e.g., do not attend parties, movies, theater, etc. together.
• Do not attend church together.
• When there are minor children, interact as parents only where strictly necessary from the child's perspective and their wellbeing, e.g., it would be acceptable for the parents to go together to a meeting with a school official relative to problems confronting a particular child, but less appropriate for the parents to ride together and sit together at a child's school play or soccer game.
• Cease gift giving between spouses for such occasions as birthdays, Christmas, anniversary, Valentine's Day, etc.
• Make known to close associates, relatives, etc. that you are not living as man and wife, but are separated within the residence as part of getting divorced in Virginia.
• Have an objective third party come to the home from time to time to personally observe the two spouses separate and distinct living quarters (bedrooms, bathrooms, etc.).
• Utilize separate entrances to the residence if feasible.
• Be prepared to explain reasons for living separately under the same roof, e.g., financial considerations; unavailability of separate residence; easing children transition to parental separation, etc.
• Do not role play as the happy couple in front of neighbors and social acquaintances. You cannot hold yourselves out as husband and wife to the community, as this will be seen as cohabitation.

Divorce Lawyers in Virginia Beach Who Understand the Challenges of Being Separated but Living Together

There are very specific rules governing divorce in Virginia, especially if you are separated and live in the same house. At Hofheimer/Ferrebee we are committed to providing you with the experience and compassion you deserve and the successful results you need to move on with your life. Request a FREE copy of our divorce guide for women in Virginia, or reserve your seat at our monthly divorce seminar - 757-425-5200.