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How Long Do You Have to Be Separated Before Filing for Divorce in Virginia? | Virginia Law Help

How Long Do You Have to Be Separated Before Filing for Divorce in Virginia?

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Reviewed by: Valerie L'Herrou

If you are thinking about getting a divorce in Virginia, one of the first things you need to know is that you cannot file right away. Virginia law requires you and your spouse to live separately for a certain amount of time before you can file. How long depends on your situation.

This article explains what "separated" means in Virginia, how long you need to wait, and what you can do to prepare.

What kind of divorce does this apply to? 

There are two types of divorce in Virginia: no-fault and fault-based.

  • A “no-fault” divorce, also called an “uncontested” divorce, means you do not have to prove your spouse did something wrong. You just have to show you have been separated long enough. Most people file for no-fault divorce.
  • A fault-based divorce is different. You would have to prove something like adultery or abandonment. For most fault-based divorces, a one-year waiting period also applies. Fault-based divorces are complicated and require hiring an attorney. They also frequently end up settling as no-fault divorces before the process is over. You should not start a fault-based divorce without getting legal advice first.

This article focuses on no-fault divorce. It is the easiest and least expensive option, but it requires you and your spouse to live "separate and apart" for a specific period of time.

What does "living separate and apart" mean? 

"Separated" has a specific legal meaning in Virginia. It does not just mean you are having problems or living in different rooms. To be legally separated, all three of these things must be true:

  • You are living physically apart from each other.
  • You are not acting like a married couple.
  • You both intend the separation to be permanent.

The separation must also be continuous. This means if you and your spouse get back together and then separate again, the clock starts over.

Can you be separated and still live in the same house? 

Yes, in Virginia, you can be separated and still live in the same house, but you have to meet specific requirements. This situation can be hard to prove, especially without an attorney.

Because keeping two households can be expensive, some people choose to live separately under the same roof.

To qualify as separated while living together, all of these must be true:

  • You do not present yourselves to neighbors or your community as a married couple.
  • At least one spouse intends the separation to be permanent for the entire separation period.
  • You handle your finances separately, including buying and preparing your own food.
  • You sleep in separate bedrooms and do not have a sexual relationship.

If you are living together but claim to be separated, a court will look closely at your situation, and will require a hearing. You will need to testify about the separation. If your spouse doesn’t agree with you, or you don’t prove the separation adequately, the judge may reject your divorce filing, and you will need to start the separation period all over again.

It will help to have documents showing you are living separate lives, especially if you think your spouse may argue that you were not actually separated.

How long do we have to wait? 

How long you have to be separated depends on two things: whether you have children under 18, and whether you have a signed written agreement covering your property and finances.

You can file after 6 months if both of these things are true: 

  • You have no minor children (under 18) together, and
  • You and your spouse have both signed a written separation agreement covering property and all other issues, including spousal support (often called a Property Settlement Agreement)

You can file after 1 year if: 

  • You have minor children together, even if you have a signed separation agreement, or
  • You do not have a signed separation agreement

What is a separation agreement? 

A separation agreement, sometimes called a "Property Settlement Agreement," is a written document you and your spouse both sign. It covers how you will divide property and debts, spousal support (if any), and custody and child support if you have children.

If you do not have a signed separation agreement, you will need to wait the full one year even if you don’t have children.

What proof do I need? 

When filing for a no-fault divorce, you should file an affidavit (a written, sworn statement) saying you have met all the legal requirements. If you do not file a properly sworn affidavit, or if your spouse contests the divorce, you will need to testify at a court hearing about your situation.

If you lived together for some or all of your separation, collect documents like separate lease agreements or deeds, and records of separate living expenses. A protective order can also serve as evidence.

If you already have court orders about custody, child support, or other matters from your separation, file those with your divorce papers. They can also help show that you were separated during this time.

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