Relationships are hard work in general, but have been made tougher over the last year due to COVID-19 and mandated quarantines. Spouses have been spending more time together than they have in a very long time and for many, the conflict has arisen. Whether you and your spouse can no longer get along, your spouse has been abusive or unfaithful, or you have both just grown apart, sometimes couples must make the difficult decision to move forward separately.
In order to move forward with the divorce process, a couple must first establish their date of separation. This is very important as it often determines when you are able to file for divorce (when you don’t have a fault basis for your divorce (e.g. adultery, desertion, etc.).
How Long After Separation Can You Obtain a Divorce?
Absent a fault basis, when you wish to file for divorce in the state of Virginia, you must wait at least one year from the date of separation before filing. If you and your spouse share children and/or lack a marital settlement agreement, you must wait at least a year to file. If you do not share children and/or have a marital settlement agreement already in place, you must wait at least six months before filing.
Additionally, the date of separation will impact which property belongs to whom. Generally speaking, accrued income, debt, and items that have been purchased after the date of separation (with post-separation funds) is considered separate property. Courts also sometimes apply the credit to a party that provides spousal support payments after the date of separation. This can reduce the duration of these payments after divorce.
Put differently, the sooner you can establish a date of separation, the sooner you can figure everything out and move forward separately.
Proving Your Date of Separation
One way to determine when a separation has occurred is for you and your spouse to sign a separation agreement, agreeing to the date of your separation and that you have no intention of reconciling. Another way to determine when the date of separation occurred is when one spouse leaves the marital home and tells the other spouse of his or her intention to obtain a divorce.
If both parties remain in the marital home and there is no separation agreement, a date of separation can still be established so long as one party:
- Vacates the marital bedroom;
- Tells the other of his or her intention to obtain a divorce; and
- Both parties stop having intercourse.
In determining whether the parties are separated, the court will take various factors into consideration:
- Whether the two parties hold themselves out to others as being separated
- Whether the two parties attend events together that don’t involve mutual children
- Whether the two parties cook meals for each other or eat out together
- Whether the two parties share a closet or bathroom
Surovell Isaacs & Levy PLC Can Help Those in VA Facing Separation and Divorce
Understanding what is necessary to prove separation is key in obtaining a divorce. This is why it’s in your best interest to consult with a knowledgeable and experienced estate planning attorney who can explain the whole process to you and walk you through each and every step.
At Surovell Isaacs & Levy PLC, we understand the importance of proving your date of separation. To learn more or to schedule a consultation, contact us today!
Posted in: Divorce