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Hofheimer Family Law Firm

Living under the same roof and separation, how this works in Virginia

One of the questions I’m asked frequently about women is whether they can live with their husband, separate and apart in the marital residence as they await the waiting period before they can get divorced and that’s a pretty serious question and generally, in the past, the answer would be no!

But actually, there are cases in Virginia that have permitted living under the same roof while separated to count towards that time period you must live apart before you can get a divorce and to help you determine or to qualify for being able to do that and those courts that permit it, I have in my book written guidelines for separation while living under the same roof and those guidelines and this won't be all of them, but they're clearly obvious ones.

One, don’t sleep in the same bedroom at night, live preferably in different parts of the house.  If you cannot share a bathroom, that would be helpful.  Don’t fix food for your spouse.  Don’t accept him fixing food for you and in other words, you really do have to live separately and apart.  You need to have separate phones and that’s not a big deal in this day and time with cell phones, but you truly need to live completely separate and apart and you need to let people know about it.

This is a little extreme, but I have people take out classified ads in the newspaper saying, my husband and I are living separate and apart and that’s kind of like notifying the public.  In addition, you can't be sneakily separated, meaning and that’s a good word, sneakily, what I mean by that is, you can't try and impress your neighbors that everything is fine when in fact you're trying to establish that you're living separate and apart.

So you need to let your neighbors know, you need to let people at your church know, you shouldn’t be going to church together.  Now what about your children?  What about activities with your children? I would say that while you probably shouldn’t do every activity together and most couples don’t anyway, there are certain things that you can do obviously at Christmas time, you can both be present to celebrate the children’s Christmas or birthdays or special holidays, or go to the school counseling meeting.  These things you would do whether you were married or divorced.  You would still be involved in your children’s lives.

So there’s nothing wrong or impermissible about that, but I probably wouldn’t be giving birthday gifts to each other or Christmas gifts at this point meaning not to your spouse and basically, you should do everything that you can to try and live separate and apart and you should have some objective third parties come to your house every couple of months to see that you really are following through and living separate and apart.  They can see that you have one bedroom, your husband has another, that the meals are prepared separately et cetera.

So I hope this was helpful.  It’s very important and the court in Virginia Beach for instance even have a special hearing to determine for people who attempt to show that they're living separate and apart.  They have a special hearing to establish whether sufficient precautions were taken by a couple to in fact establish that they were living separate and apart under the same roof.