What is the Difference Between Legal Separation and Divorce?

“Separation” is one of the most commonly misunderstood and misused words in the area of divorce and family law. Couples often will describe themselves as “separated” when legally they are not considered to be separated. To be legally “separated” in Virginia, various elements must be met that often require more of the parties then they may expect.

Below, we will discuss the various meanings of the term separation – including a “legal separation” – and talk about what the applicable laws are in Virginia regarding divorce, separation, and a divorce from bed and board.

Separation as a Way of Describing Non-Cohabitation

When two spouses decide to live apart from one another, meaning in separate households, and at least one spouse intends said separation to be permanent, they are considered “separated.” Unlike many other states, Virginia does not issue a court order noting a “legal separation.” You do not need any involvement from the court to consider yourself separated from your spouse. You only need to be living in separate households with the intent of at least one spouse for the separation to be permanent. However, just because parties have separated does not mean they are immediately entitled to file for divorce.

Why Separation is Important for Divorce in Virginia

To obtain a divorce in Virginia, you need either 1) grounds for fault (e.g. a felony conviction, adultery, abandonment, etc.) or 2) you need to meet the requirements of a no-fault divorce.

In order to obtain a no-fault divorce in Virginia, you and your spouse need to have been separated – living apart without cohabitation – for one year. This requirement is reduced to six months if there are no minor children and the spouses have reached a settlement agreement regarding property and spousal support.

Divorce From Bed and Board

Although Virginia does not issue an order noting that parties have legally separated, the state does allow for what is called a “divorce from bed and board.” With a divorce from bed and board, the two spouses will remain married but the parties can obtain the financial protections a divorce would give, including division of property (so that your spouse no longer has access to your portion of property) and spousal support. To obtain a divorce from bed and board, a party has to show that grounds exist, such as desertion or cruelty. Parties often choose to seek a divorce from bed and board when a complete termination of the marriage would violate their religious beliefs or prevent them from receiving benefits.

Caring, Experienced Family Law Attorneys in Fredericksburg

Whether you are working towards a divorce or simply exploring your options for a separation, the family law attorneys at Select Law Partners will work with you to answer all of your questions and guide you towards the best outcome for your situation. Call today to schedule a consultation.

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Matt Kurylo

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