In light of the recent global health crisis, some spouses considering divorce, or already separated, may be concerned about establishing a legal separation while still living in the same home.
In Virginia, parties wishing to divorce are required to have lived separate and apart without cohabitation and without interruption for a certain period of time before they can be granted a divorce. In order to start the clock on a separation meeting this requirement, many parties express an intent to divorce while living in the same household, and for a number of reasons, it may be difficult or impossible for spouses to establish two households immediately upon separating. The law in Virginia will view certain parties as having separated while still living under the same roof, so long as they have taken certain steps that clearly establish their separation. Couples who are separated in the same home should consider the following steps to establish their separation:
1) Living Separate and Apart
To the extent that they are able, spouses should establish separate living spaces within the home. For couples with a guest room, suite or basement, this may be easier than those who may alternate using a shared space or office with less separate space to store personal belongings. Some spouses employ a “nesting” arrangement, where they take turns staying in the home by alternating time spent in the marital home with time spent living in an apartment, at a hotel or with friends and family. Spouses should communicate their intent to separate in writing, and where it can be helpful to ease tensions, the parties should continue to communicate in writing, giving themselves time to review and their responses and step back from the emotional aspect of this transition. The parties should cease sexual intimacy and romantic gestures. If active on social media the parties should not post about one another or about their separation, but should privately inform family and friends.
2) Separate Responsibilities
Within a marriage spouses often fall into an implicit, or explicit, division of responsibilities. To establish the separation each spouse should assume the responsibility for their own personal expenses and chores such as laundry, grocery shopping, and meal preparation. This may include dividing the cost of joint expenses, as well as childcare and pet care responsibilities. If the parties are each employed then they should seriously consider establishing separate finances by opening separate checking accounts and changing their direct deposits to those accounts. In this scenario, spouses should keep a joint account and designate each spouse’s defined contribution to the joint account for continued payment of joint obligations such as home upkeep or childcare, which can ease the transition from a joint to separate households. If on a shared cell phone plan or membership, the parties should begin separating their accounts and cease or separate any other joint recreational expenses.
3) Create a Custody Schedule
Parties with children should create a schedule that alternates each person’s responsibility for the child (or pet!). The parent with “custody” should be responsible for transportation, bathing, and morning and bedtime schedules, while the other parent should step back on their “non-custodial” days. Spouses may need to discuss with your partner how to equally divide the use of a nanny or au pair. The parties should not take the children together to playdates, activities or other social events and should try to arrive separately at other jointly attended functions.
Socializing jointly with friends and family should be limited. The parties should cease wearing wedding rings and acknowledging one another as husband and wife. They should also inform friends and family about the decision to separate. Many spouses may have mutual friends, clear boundaries should be set with these friends and the separation not discussed. Though spouses with young children may be inclined to attend the same functions (arriving separately), spouses who are living separately should not celebrate holidays together or attend family vacations or reunions together. Celebrating their child’s birthday jointly is acceptable if the parties are able to harmoniously celebrate together.
5) Memorializing Your Separation
To be completely clear about each party’s expectations, spouses establishing an in-home separation may want to memorialize all, or some, of the above steps in a comprehensive written separation agreement. At this point, you should consult a family law attorney about the advantages and disadvantages of the terms in your proposed agreement before signing any document proposed by your spouse or their lawyer. Your attorney can also help draft your agreement and when applicable, file it with the court so that your agreement can be enforced through litigation.
6) Prepare Yourself, Even in the Best Circumstances, In-Home Separation is Difficult
Right after a separation, emotions tend to run high and both parties may experience highs and lows associated with the changes that are occurring. It is important to give each other a wide-berth, space, and attempt to practice understanding, compassion, and self-care, focusing energies on the well-being of yourself and any children.
7) Utilize Professionals
We highly encourage all parties engaging in a separation or divorce to seek out the assistance of a professional therapist to help them navigate through the changes that are occurring and will continue to occur and evolve throughout the process. Not only is a therapist likely cheaper than your divorce attorney, but they can also provide you with helpful tips and methods of coping with what is typically a difficult and emotional situation, even in the best of separations.
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