The How-to Guide to Living Separate and Apart Under the Same Roof
In Virginia, you can file a “no-fault” divorce once you and your spouse “have lived separate and apart without any cohabitation and without interruption for one year.”[1] But sometimes it is not feasible or practical to live in two separate homes, either due to financial strains or because of the care of the children. So, in those circumstances, how can couples “separate” while living together?
In general, establishing separation from your spouse requires one to set physical, financial, and social boundaries so that you can clearly demonstrate you are no longer living like a married couple.
The first, and most important, step is to notify the other person that you want to separate. Notification can be verbal or in writing, but the intent to separate must be made known explicitly to the other party.
After notice has been given, then there are several steps you should take to demonstrate the separation while under the same roof:
- Sleep in separate bedrooms; if this is not possible, sleep in separate beds.
- Do not engage in any romantic or sexual intimacy.
- Do not celebrate any anniversaries or special occasions with each other.
- Do not give each other gifts for any birthdays, holidays, or anniversaries.
- Remove your wedding ring(s).
- Separate your finances so that your salary and any other funds are not being deposited into a joint account; you should establish a separate checking and/or savings account and use a separate credit card.
- Do not do any household chores (e.g., laundry, cooking, lawn mowing, trash removal, etc.) for the other person.
- Avoid, to the best of your ability, eating meals together. This is not always possible when parties have minor children, as couples try to navigate what is best for the children and their understanding of the separation. So long as you can argue that the meals eaten as a family are solely for the benefit of the children, this would be an acceptable explanation.
- Hold yourself out to the public (including your co-workers, colleagues, relatives, etc.) as separated.
- Do not attend social events together, including church. If you know that your spouse will be in attendance, do not carpool together.
- Do not go on vacations together. Again, this may not be feasible if family’s have already planned trips. When there are minor children involved, it may be acceptable to participate for their sake, but they should continue to maintain their separation by not sharing a room or bed together.
Failing to maintain any one of these listed actions does not necessarily mean you must restart the clock to reach a year of separation, as one mistake does not equate to reconciliation. However, your intent to separate should be firmly maintained, and there should be substantial efforts to live as a single individual, not as a married couple. If both parties are in agreement as to the separation under the same roof, and particularly if you memorialize such agreement by email or text, adhering to the listed actions can also be more relaxed. It’s best to seek legal counsel if you have questions about how to meet this requirement in your particular case.
If you are looking for legal advice or for an attorney to represent your interests in your divorce, our experienced family law attorneys at Briglia Hundley can help. Contact us to schedule an initial consultation today.
——
[1] Va. Code Ann. § 20-91(2024).
