The Process of Legal Separation in Virginia
In Virginia, legal separation is somewhat of a misnomer, as there is no formal separation status. However, a couple can live separate and apart with the intent to end the marital relationship for a period of time and then file a divorce action at some later date. Virginia still uses the "bed and board" concept from old English law. A couple living separate and apart for one year and then subsequently filing for divorce is generally acceptable as a legal separation in Virginia. Some exceptions apply (e.g. , both parties need to file a counterclaim within six months for a divorce based on adultery). Virginia recognizes separation agreements that delineate terms of alimony, property division, custody and support. A separation agreement serves as a contact and can be enforced by either party in the event of a breach, it has the same force and effect as a court order. A custodian or payor may get a judgment against a party who is in breach of a separation agreement.
Who Can File for Legal Separation
Before proceeding to file for legal separation in Virginia, one must first satisfy certain legal requirements for eligibility. While the criteria for filing for legal separation are generally more lenient than those for obtaining an absolute divorce, there are still some conditions that have to be met. To file for legal separation in Virginia, one must be legally eligible to file for divorce. This essentially means that the parties must have been separated for over a year unless the ground for divorce is adultery. For legal separation, the parties do not necessarily have to be separated as long as they meet the basic legally prescribed separation period which is mandatory for divorce in every circumstance. There are no other eligibility criteria for legal separation, and therefore, unlike divorce, there are no residency requirements. For legal separation, the person filing does not need to be a Virginia resident.
Steps to Undertake When Filing for a Legal Separation
If a stay-at-home parent is seeking support from a working spouse or a spouse is being cheated upon, filing for a legal separation can be the best choice. The separation protects both partners financially while leaving room for potential reconciliation later.
The first step in filing for legal separation in Virginia is to determine legal separation requirements and if they have been met. A couple must have been separate for at least one year before applying for divorce. To receive a divorce prior to this one-year separation period, one spouse must present proof of cheating, abuse or desertion. For instance, if one partner left an abusive relationship, a divorce can be filed immediately.
Couples may file for legal separation without applying for an official separation agreement. Those who want a straightforward separation procedure can simply move out of the home. Once the spouses are physically separate from each other, they can decide if they want to reconvene after a period of time or pursue a legal separation agreement.
For couples without particularly high assets, it may only take about six months to complete the legal separation process. Spouses who possess significant assets or children to raise together may take longer. It often takes more than a year to determine asset division and child custody arrangements for high net-worth couples with ongoing custody or asset disagreements. Couples may also take a longer period of time to finalize a divorce due to court schedules. For example, a divorce case may be postponed for a few months due to a difficult schedule.
In recognizing their legal separation, both spouses have a few obligations to fulfill. First, both should live separately, and for at least six months, before finalizing a legal separation agreement. For couples undergoing divorce, they may have to wait a year. The separation agreement should be written and signed by both parties. A judge will later approve the separation agreement after both parties have submitted their own testimony. The separation judge verifies that the agreement meets the needs of both parties.
Necessary Legal Paperwork
In Virginia, the legal documents required for a legal separation include a complaint for legal separation, which is filed by one spouse. This document outlines the grounds for separation, the relief sought by the filing spouse, and whether that spouse is requesting sole custody of children. The complaint also includes a certificate of grounds for divorce that states when the couple last lived together, that they have lived apart for at least one year (or six months if they don’t have children and have signed an agreement to separate), and that there is no reasonable hope of reconciliation.
Once the complaint is filed, a summons must be issued and served to the other spouse. The documents that need to be served with the summons include the following: financial statements for both spouses, an affidavit as to military service that states whether or not the spouse is in military service and, if so, contact information for that military base, and a notice of hearing if the filing spouse is seeking any sort of relief from the court, like spousal support.
The other spouse has 21 days to respond after being served. In the response, he or she may respond to each of the allegations made in the complaint or deny the lack of hope for reconciliation, among other possible responses. Filing for legal separation in Virginia creates a legal separation agreement, which can be enforced per the provisions of that agreement.
Speaking to a Family Lawyer
A legal separation requires that a spouse files a separation agreement: a legal document outlining the terms of the separation. Separations can include the division of assets, spousal support and child custody arrangements. Many spouses choose to hire an attorney who is experienced in Virginia family law, as this type of attorney is knowledgeable in local laws governing the separation process. A Virginia family law attorney can ensure that the provisions outlined in the separation agreement are enforceable and applicable to the couple’s situation. Further , a family law attorney is aware of common provisions and terms that may be found in other separation agreements. A family law attorney is knowledgeable in these legal documents and can help the client avoid common mistakes during the process. A legal separation can be complicated, and an attorney is well equipped to handle any unforeseen issues that may arise during the procedure. As these agreements are legally binding, it is imperative to have an experienced attorney translate the spouse’s needs into legal terms.
Child Support and Custody Issues
Child custody issues in Virginia are addressed by the court per Virginia Code 20-124.2. The code requires the court to give the statutory factors a broad construction, and not allow any one of them to be the exclusive controlling factor. Some of the statutory factors are: Even if a generally more suitable environment for the children is established, and there are ideal conditions for raising the children, the court may still decide that custody should be granted to the other parent if it is likely that the parent with ideal circumstances will move out of state in the foreseeable future. Or, if there is evidence that the new spouse of either parent will not approve of the children being raised by the non-biological parent, then that situation will make the issue of child custody very muddy indeed. Even when the court decides to grant custody to one parent, that does not necessarily mean that the other parent is going to be on the hook for child support. If that non-custodial parent is incapable of working, or has special needs, then they will not be required to pay child support. In that case, the custodial parent will be required to provide all of the children’s needs and will not be allowed to claim child support as income. In cases where a spouse voluntarily quits their job to avoid paying child support, that spouse can be ordered to pay based on their prior income. Where the circumstances indicate that the husband worked two jobs while the wife stayed at home and refuses to work, then the court will usually order child support at the amount that usually applies to both parents working.
Obligations for Spousal Support
Spousal support considerations may be part of the legal separation petition, or it could be a later motion. Having some support is often a goal of a person who files for legal separation; without it, he or she may have a hard time making ends meet.
Sometimes a couple agrees that one will pay the other after a separation. A couple living on one income usually doesn’t have much in the way of savings, and the spouse not making an income can be financially devastated. If a couple can talk through their relationship issues and agree that interim support needs to be paid, the person requesting support can avoid the court process.
Virginia courts favor informal settlements. If your spouse cooperates with you in the separation process, you’ll be thankful because parts of a divorce can be very expensive when done through the court system.
A judge will typically require an ex parte hearing, with only the couple present, to determine if spousal support is warranted. After the hearing, if the judge decides interim support should be paid, an award is made effective until the court agrees upon permanent support in the future.
Even if the couple does not agree on spousal support, a judge may provide interim support to one party. Generally, the court looks at the circumstances of the marriage; the parties’ respective age, health and education; relevant debts and income; the duration of the marriage; and how the parties interact with each other as a married couple. The judge also considers how a breakdown of the marriage and separation are affecting living standards, the cost of health care, and whether there’s an option for other health coverage.
When the parties can’t agree, either one can file a motion with the court for support. A hearing date is automatically set, and both parties receive notice. The considerations when spousal support is contested are similar to when a judge decides interim support.
After a court grants interim spousal support, it also determines what will be paid on a monthly basis. This figure is generally based on several factors:
• gross income of both parties
• whether one party has been out of the workforce for more than a year
• how long the marriage lasted
• age of the parties
• level of the parent’s involvement with children, and whether children are school-aged or younger
• possibility that a parent might go to school to better support the family
Most likely, the spouses will not be required to appear at the interim hearing. The judge generally hears from attorneys, and may use a child or spousal support calculator for a recommendation. The recommendation is advisory only; the judge makes the final decision.
Signing the Separation Agreement
The next step after the Separation Agreement, under Virginia law, is to finalize your separation agreement and have it entered by the court. For the separation agreement to be enforceable, the agreement must be in writing, signed by both parties (need a signature of the party against whom it is filed), notarized, filed with the court and incorporated into the final divorce decree. (see Code of Virginia § 20-155)
Next, you need to file the following items with the Circuit Court:
- Memorandum of Agreement, this is a short form setting forth that you and your spouse have the understanding that the court reserves the right to incorporate the terms of your separation agreement into the final divorce decree.
- Notice of Hearing, this document has information about the hearing date for your divorce and needs to be served on your spouse.
- Complaint for Divorce and Complaint for Divorce Done in the Right Way, these two documents explain that you are asking the court to grant your divorce .
- Verification, this document is essentially a sworn statement certifying the accuracy of the complaint.
- Bill of Complaint, this is where you lay out your case for why the court should grant your divorce and your requests.
- Draft Divorce Decree incorporating the separation agreement, this document contains the language that you would like to see in your final divorce decree.
- Form VS-4, this is the State Vital Statistics Form which provides the court with demographic data.
- Form DC-650, this will get you the free copies of your submitted documents if they remain on file with the court.
- Application for Judgment, go into detail here and explain the request for the divorce judgment you are filing with the court.
Once Virginia’s statutory waiting period of six months has expired, you can then move to finalize the divorce using the above forms to obligate the court to incorporate the Separation Agreement per the direction provided in § 20-155.