Living separately under the same roof is a growing trend in Northern Virginia divorce cases. Many families are just making ends meet with one set of expenses, so the thought of taking on the expense of an additional household is inconceivable.
Even if both parties agree that separation is imminent, many things must be considered. Can we afford to maintain the marital residence if one of us moves out and has to pay rent and utilities elsewhere? What will we do about marital debts? If one person moves out, will they still be responsible for paying expenses for the marital residence? What will happen with the children?
To obtain a “no fault” divorce in Virginia, parties must be separated for at least one year prior to filing for divorce (unless there are no minor children and the parties have a property settlement agreement, then the separation must be for at least six months prior to filing for divorce).
Parties can live separate and apart under the same roof, but there is no such thing as “legal separation.” Many people think that there is a magic place at the local courthouse where parties can declare they are separated and BAM, they are deemed separated by law! Rather, whether people have been living separate and apart is a question of fact for a court to ultimately determine.
When determining whether parties have been living separate and apart under the same roof, the Virginia courts look at a number of factors. While not an inclusive list by any means, courts tend to look at the following:
Sexual relations between the parties;
Residing in separate bedrooms;
Separate living spaces within the home;
Financial considerations or children as the reasons for continuing to live in the same home;
Continuing to share financial arrangements, such as banking accounts and credit accounts;
Attending social functions together;
Continuing to hold themselves out as husband and wife to others;
Eating meals together, doing laundry together, walking the dog together, etc., like they did prior to the separation;
Whether there is a clear intent to separate by one or both parties;
Continuing to wear wedding bands.
In simple terms, are the parties living as husband and wife or are they living more like roommates? While eating an occasional meal together or attending a child’s soccer tournament together will probably not restart the clock for the separation period, parties must be cognizant of how they interact. At the time of the divorce hearing, the court will take evidence to determine whether parties have truly been living separate and apart. That evidence must be corroborated by a witness other than the parties, such as a friend or family member who has personally observed the parties’ separation within the home.
Cassandra Chin is a partner with Nichols Zauzig Sandler, P.C. and a fellow in the American Academy of Matrimonial Lawyers. Contact her for legal advice about your separation or divorce using the email form below or by calling 703-492-4200.
DISCLAIMER: The results of every case depend on factors unique to that case, and NZS Law does not guarantee or predict results in any given case.