Effecting Separation Under the Same Roof

No-fault divorce in Virginia requires separation for one year (or six months if the parties do not have minor children and have entered into a separation agreement).  Separation requires both the physical component of living apart as well as intent by at least one of the parties to terminate the marriage by divorce.  Typically, the parties take up different residences during the separation period.  However, for some parties, obtaining separate residences is not feasible because of financial hardship or other reasons such as unavailability of housing for one of the parties.  In those cases, separation may be established under the same roof, but there are some requirements.  Although not all of these may be required in every case, generally, separation in the same residence requires the following:

1. Cessation of intimacy and romantic relations: This is a requisite component of separation, and a single instance of intimacy between the parties will be considered reconciliation and an interruption of the separation period.

2. Living in separate bedrooms/areas of the house, preferably using separate entrances: While parties may live under the same roof and be legally separated, they should not share a bedroom, and whenever possible, avoid using the same entrance to the home.  Chores should also be divided, and neither party should clean up after the other or care for his/her laundry.

3. Finances should be separated.  The parties should keep separate accounts and establish financial independence.  Both parties should avoid buying necessities or gifts for the other party.  However, this does not preclude either party from paying child support or spousal support.

4. Groceries and food preparation should be separate. Neither party should buy groceries or prepare meals for the other.  The parties should also avoid eating together as a couple.

5. Attending social functions separately: During separation, the parties should avoid holding themselves out as a couple.  They should not attend social functions together, and if they choose to participate in the same social event, they should not ride together or sit together at the event.  However, this should not prevent parents from participating in a joint birthday party for their child, for example, or attending other functions related to their children at the same time.

6. Wedding bands should be removed.

7. Inviting a witness to visit the home: Since separation under the same roof is more difficult to prove, the parties should invite a witness to periodically visit their home and see the separate arrangements they have made. Corroboration is required to prove separation in a divorce, so it is important that the parties make at least one party aware of their living arrangements while separated under the same roof, and the witness should visit the home to witness the separation.

While every case is different, and different judges may use various levels of scrutiny for separation in the same residence, these are general guidelines for establishing separation under the same roof. The parties should have evidence of their behavior during separation and should be prepared to explain to the judge the reason for sharing a residence during the separation period.  Of course, not all parties can successfully separate under the same roof, so if you are contemplating divorce and would like to begin your separation, contact us for advice on the best approach for your situation.