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In some cases of separation, couples can amicably split up without getting the legal system involved. In others, it’s more contentious, or perhaps it’s just the first step on the path to divorce, and people want to make sure that the process is done correctly.
In the state of Virginia, the process of separating from a spouse before a divorce and making it part of the legal case can prove to be a bit different. Fortunately, with a little education and the assistance of a legal separation or divorce attorney in Virginia Beach, you can learn what’s required and figure out how to proceed with your case.
What constitutes a “legal separation” in Virginia?
Unlike a lot of states, there is no actual procedure for getting “legally separated” in the event of no-fault divorce cases. Couples that are divorcing generally go from being married and living together to living apart, and then to the final divorce process. The “living apart” stage may or may not include a separation agreement, and the court doesn’t get involved until the divorce stage of the process.
There is one rare exception to this rule. So rare, in fact, that some people aren’t even aware that it exists. This is what’s called “divorce from bed and board,” and it can only be used in fault-based cases (contested divorces). They’re very rarely if ever, granted or requested.
How do I move ahead with separation in the state of Virginia?
The process is similar to what it would be elsewhere, but it is something that must be done on behalf of the parties involved before the courts intervene. In filing for a no-fault divorce, one of the rules is that couples must live “separate and apart” for a period of at least one year prior to the divorce.
In the event that there are children involved or there is a separation agreement in place, this period only has to be six months in length. In order to qualify as living separately and apart, the parties must both physically separate and show intent. Of course, that doesn’t mean both spouses need to agree to the divorce, necessarily. It simply means that there has been a conversation or communication between the spouses after one decided that the marriage is over.
Proving the date of separation is an integral part of the divorce process, so it’s best to document it in writing by setting a date or being very explicit that this is to signify the end of the marriage. Then, parties will need to be physically separate for the duration of this period. In some cases, the “separate and apart” rule can be exercised under the same roof when there are circumstances preventing physical relocation.
The state offers more information on this process, and if you’re working with a qualified lawyer, you should have no trouble getting everything in order.
How long does this process take?
Although you need to be separated for either 6 or 12 months before the courts will grant a divorce, the actual process could take longer. It depends on how prepared you are for the separation in the first place, whether you enlist the help of a lawyer, and if you are able to establish proof of separation. In some cases, people don’t properly establish proof, causing the courts to consider their physical separation period too short or incomplete.
Every single separation and divorce case is different. The best thing that you can do is talk to your lawyer and get the facts about your options.
What about separation agreements?
There are separation agreements that you can have put into place instead of a legal separation. These contracts are designed to help couples settle all of the rights and interests of those involved in the divorce. Virginia law often refers to these as property settlement agreements or marital settlement agreements. There are several benefits to these, but the fact is that they are necessary.
Separation agreements give people better control over how things are settled rather than leaving it to a judge. It can be a good idea to at least try to draw one of these up, even if you have to do it with the assistance of a lawyer. These agreements will resolve all kinds of outstanding issues, including division of assets, property, and debts, as well as any spousal or child support, custody, and other issues.
A detailed separation agreement can often save a lot of time and hassle in the legal process once things get to court. It can also help keep the peace and keep both parties on the same page. It allows for the court to deem this a no-fault situation, and it can even shorten the time required for the separation. Even if you don’t have any joint assets or debts, it might still behoove you to go this route because it is quicker.
Bear in mind that these are agreements, and they are voluntary. If someone does not want to sign it, they don’t have to. Couples who can’t reach an agreement will have to wait for the 12 months to elapse before they can file for their no-fault divorce complaint. This is not a court order, and it is not legally binding. However, a separation agreement can be a helpful tool to have in your divorce.
What is desertion, and how is it different?
Separation refers to separating from a spouse while still acting under the same rules and expectations of the marriage. This is usually a situation where a couple will discuss the situation and the terms of their separation before they make any moves. These are more commonly found in amicable situations, or at least in divorces and breakups where one couple can convince the other to agree to divorce.
Desertion, on the other hand, refers to one party unilaterally deciding that the marriage is over. This leaves the other party with all of the responsibilities and duties of the marriage and potentially even the family and does not give them room to even have a choice, in most cases. When a spouse is deemed to have deserted a marriage, the courts will have to prove they neglected things like:
- Financial obligations and debts
- Any other financial or monetary support
- Emotional and physical support
- Other marital duties and obligations
The state of Virginia has a very thin line between separation and desertion, which is why it is important to get a separation agreement in writing.
Do You Really Need a Legal Separation Attorney?
Some people will absorb all of this information and then assume that means they don’t need to hire a lawyer just yet. Since the separation agreement is just an agreement, after all, it’s just between the two parties, and there isn’t much for the legal process to do at this point. However, the fact is that it’s never too soon to hire a qualified divorce lawyer for your case. They can help you get all of the insight and information that you need to determine how to proceed and get through the separation process so that your divorce hearing goes smoothly.
Working with a qualified divorce lawyer or family law professional will ensure that you get a fair outcome and that everyone gets through the separation and divorce process with the least amount of hassle possible. If you’re going through a separation and heading for divorce, you need legal representation. Contact Deering Hedrick and see how we can help you with separations, divorces, and even custody cases in Virginia Beach and other surrounding areas throughout Virginia.
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