Legal Separation Vs. Divorce in Virginia: Key Differences
If you are weighing the decision to separate from your spouse or file for divorce, you may be wondering about the legal ramifications of each choice. It’s crucial to gather as much information as possible before making such an important decision. When considering legal separation vs. divorce in Virginia, the team at Taylor Huguley Powers PLLC is here to answer your questions.
With years of experience in divorce law, our team of qualified legal professionals is equipped to offer sound legal advice during periods of marital uncertainty. Before you take legal action against your spouse, it’s vital to understand Virginia’s laws around divorce and separation.
Legal Separation in Virginia
Unlike many states, Virginia courts do not grant a legal decree of separation when parties choose to separate. On the date you and your spouse choose to live separately, your separation begins by default, and Virginia’s mandatory six- to 12-month waiting period commences. This waiting period is necessary before a divorce can be finalized.
The closest equivalent to a legal separation in Virginia is a divorce under bed-and-board, under Virginia Code § 20-95. This limited divorce can be granted in cases where the threat of physical harm is present, when the separation occurs under duress, or when willful abandonment or desertion are factors.
While a bed-and-board decree is not an absolute divorce, and neither spouse can legally remarry, it does allow the courts to establish spousal support and child support orders, and it can be filed immediately upon separation. Once a year has passed, the couple can dissolve the decree or go forward with an absolute divorce to permanently dissolve the marriage.
Divorce in Virginia
In Virginia, there are two kinds of divorce — uncontested and contested absolute divorce. When the spouses mostly agree on matters, they can get an uncontested divorce. These agreements should cover property division, child support, spousal support, and custody; these topics are negotiated during mediation.
In a contested divorce, the terms are under dispute, and sometimes these disputes escalate into litigation. In a contested divorce, a judge must make the final decisions regarding property division, child and spousal support, and custody. Contested divorces are stressful, time-consuming, and expensive.
In Virginia, the divorce rate has hovered around 2.7 divorces per 1,000 people since 2024, statewide, whereas in Fairfax, the divorce rate is around 1% of the population.
The Divorce Process in Virginia
When a currently separated spouse decides that nothing will repair the marriage, and they both wish to petition the courts for divorce, the divorce case begins. Called an absolute divorce in Virginia, this action permanently dissolves a marriage, allowing either spouse to remarry.
It’s highly advisable to seek the advice of a qualified divorce attorney before filing for divorce. Virginia’s divorce laws are complex. When you hire a divorce lawyer, your attorney can guide you through the process at every step of your divorce. Aspects of the divorce process in Virginia are:
- Filing the divorce petition: Your attorney can help you prepare your initial filing and arrange for your spouse to be served with divorce papers. You do not need your spouse’s permission before filing.
- Financial disclosures and property division: After your spouse files their response, both parties are required to disclose debts and assets to one another and the court. Your attorney can help you prepare these documents and file them.
- Parenting plan: If there are minor children, both parents must negotiate a parenting plan that protects the well-being of their children. Decisions regarding visitation, health care, education, and other important issues must be documented and filed with the court.
- Child support and spousal support: The lower-earning spouse usually receives spousal support from the higher-earning party. The parent with whom the child resides the majority of the time usually receives child support from the other parent.
- Final judgment and decree: Once all factors have been negotiated and a final divorce judgment is drafted by your attorney, the court signs the decree into law, and the divorce is final.
No-Fault and Fault-Based Divorces in Virginia
Many people wonder what the difference is between a no-fault and fault-based divorce. In Virginia, a no-fault divorce does not require either spouse to prove “fault” or wrongdoing on the part of their spouse. Two people can simply decide that their differences are enough to justify a divorce, so long as the required six- to 12-month separation period is observed.
In a fault-based divorce, the courts require one spouse to prove that the other spouse is guilty of misconduct. Grounds for fault-based divorce include adultery, cruelty, a felony conviction, or desertion, similar to the qualifying factors for a bed-and-board decree. Fault-based divorces can impact property division and custody arrangements, which is why some parties elect to pursue an at-fault divorce.
Whether you choose to separate from your spouse or file for divorce, it’s crucial to consult with a trained legal professional before making decisions that could impact your finances and children. At Taylor Huguley Powers PLLC, we can help you make an informed decision.
FAQs
What Should You Not Do During Separation in Virginia?
During your separation in Virginia, it’s important not to do certain things that might impact your case. Draining joint accounts, withholding financial information, blocking contact with your spouse, using children as messengers or leverage, or starting a new romantic relationship can all have lasting legal consequences in a future divorce case.
What if My Spouse and I Decide Not to Divorce After We Separate?
If you and your spouse choose not to divorce after separation, you can simply choose to continue to live apart and stay married, or resume cohabiting. If you have filed a bed-and-board decree, you have a full year from the date of separation to make a decision about your marriage. You can dissolve the decree, or choose to go forward with an absolute divorce.
Does a Husband Have to Financially Support His Wife During Separation in Virginia?
In Virginia, a husband is not automatically required to support his wife during separation, but the expectation is that both spouses will maintain the same quality of life they enjoyed while cohabiting. If a spouse is without income during separation, they may request an order from the court requiring the other party to provide temporary spousal support.
What Are the Disadvantages of Separation?
Some disadvantages of separation can include the lack of court-ordered duties. Without a divorce filing or a bed-and-board agreement, the rules around financial and custody arrangements can become muddled. The communication required during separation can increase the chances of conflict and misunderstanding. If you are concerned about your spouse’s behavior during separation, it’s advisable to speak to an attorney as soon as possible.
Hire a Divorce Lawyer in Fairfax, VA
When you have questions about separation and divorce, Taylor Huguley Powers PLLC has the answers you’re seeking. Contact our office today for a consultation.
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