There is no such term as “legal separation” in Virginia law.  Sometimes people may refer to themselves as legally separated after they have signed a Marital Settlement Agreement with their spouse and are waiting out the required separation period until they can file for an uncontested divorce.

However, you can obtain a limited divorce, also called a “divorce a mensa et thoro” (from bed and board) if you have grounds. The grounds for a limited divorce are different than the grounds required for a final divorce.  They are as follows:

Desertion or abandonment – no minimum duration

Cruelty – no required duration after the act of cruelty.

Note that, unlike for final divorce, there are no “no fault” limited divorce grounds in Virginia.

In Virginia, the reason for filing a limited divorce is usually to get your support or custody case into Circuit Court rather than Juvenile & Domestic Relations District Court when you need a court order regarding support or custody and you do not have grounds for a final divorce.  If you think you have this situation, ask us about it.

A permanent and final divorce is called a “divorce a vinculo matrimonii” (meaning from the bonds of matrimony) in Virginia. All divorces require proof of grounds. If you are filing for divorce, you have to have grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for the award of legal fees to your spouse. Pending the final divorce you should not do anything to give your spouse any grounds for divorce because it can probably be used against you. In Virginia you can be living separate and apart under the same roof, but this is difficult to prove, and requires planning.
The grounds for a final divorce in Virginia are as follows:
1. Adultery
2. Felony conviction – at least one year imprisonment.
3. Cruelty – one year after the act of cruelty.
4. Desertion continuing for one year.
5. Voluntary separation – for one year without interruption or marital relations and no reasonable prospect of reconciliation. If there are no minor children and the spouses have a written separation agreement, the require period is six months. In Virginia you can be living separate and apart under the same roof during the required separation period, but this requires careful planning and can be difficult to prove.

Tareq Salahi has filed for divorce from Michaele Salahi, White House gate crasher and one of the Real Housewives of DC.

Tareq accuses Michaele of desertion and adultery with Journey guitarist Neal Schon.

In the Complaint, Tareq claims Schon sent Michaele a picture of a part of his body via email.

There is no lawyer’s name on the Complaint, but it appears to be drafted by someone who knows divorce law.  There is no mention of a prenuptial agreement.

Grounds for absolute divorce are changing again in Maryland on October 1, 2011, once the Governor signs Senate Bill 139 into law, amending Section 7-103 of the Family Law Article of the Maryland Code.

Until then, Maryland has two “no-fault” grounds, namely one year voluntary separation and two year’s involuntary separation.  This is the same as grounds in the District of Columbia and similar to Virginia.

The original bill would have changed that to six months voluntary separation and one year involuntary separation.

Instead, the General Assembly decided to do away with voluntary separation altogether and change the separation period for an involuntary separation to one year.  This means you no longer have to prove and corroborate, with an agreement or third party, that the separation was mutual and voluntary.

Heather Sunderman’s take on the new law’s impact.

A bill to shorten the separation periods for the no fault grounds for absolute divorce in Maryland has been introduced by Senator Zirkin.

Senate Bill 139 would amend Section 7-103(a)(3) and (4) of the Family Law Article by changing the separation period for a voluntary separation from 12 months to 6 months and the separation period for an involuntary separation from 2 years to 12 months.  If passed, the law would take effect October 1, 2011.

However, similar bills have been introduced in past years, and have been defeated by lawmakers who believe that marriage should be encouraged and divorce should not be easier to obtain.  Having a longer waiting period discourages impulsive divorces and gives people time to change their minds or make up their minds that they really want a divorce.

Under current Maryland law, you can still get divorced without any waiting period for the fault grounds of adultery or cruelty. You can also enter into a separation agreement.

Both Virginia and DC permit a no-fault divorce after six months voluntary separation or one year involuntary separation.  In Virginia and DC, the separation can be while living in the same house.  Maryland courts have ruled each spouse must live under a separate roof during the separation.

Years ago Maryland and Virginia added no-fault divorce grounds to the traditional fault grounds.   DC has moved completely to no fault grounds.  However, even if you file on no-fault grounds, marital misconduct still comes into play in all three jurisdictions.

Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony.  In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties.  In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Custody. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

As a result, the parties spend 90% of their time in discovery and trial trying to prove fault.  While most of the judges I’ve talked to say it affects their decision by 10% or less.

We have been comparing answers around the Washington beltway to the question “Can I get a divorce if neither I nor my spouse has moved from the marital home?”   It is time to take a look at the District of Columbia.

D.C. Code Sec.16-904(a). provides that “a divorce from the bonds of marriage may be granted if: (1) both parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation for a period of six months next preceding the commencement of the action;” or “(2) both parties to the marriage have lived separate and apart without cohabitation for a period of one year next preceding the commencement of the action.”

Obtaining a divorce on separation grounds without moving out of the same household is not a problem in the District of Columbia.  There are no reported cases in DC where a divorce has been denied on separation grounds because neither spouse has moved out of the joint residence.  Also there is no corroboration requirement so those difficulties are not present.  The Superior Court is the only trial court so there is no possibility of varying interpretation between different circuit courts as there can be in Maryland and Virginia.

So the answer to the question in the District of Columbia is “Yes, you can get a divorce without moving out.”

Mary nervously twisted a white handkerchief in her hands on the witness stand at her uncontested divorce hearing.

“What was the date of separation?” asked her lawyer, Ned.

“April 1, 2010,”  Mary said.

“Was the separation mutual and voluntary on the part of both of you?”

“No, he just left.  He didn’t ask me.”

“Counsel approach the bench,” the Judge ordered.

“Hmmm,” said the Judge, “mere acquiescence in what you could not prevent is not a voluntary separation.  And a separation cannot, at the moment of its occurrence, constitute both an abandonment of one party by the other and a separation by mutual agreement.”

“I think I can fix it, Judge,” Ned said, “if you’ll let me ask a few more questions.

“Go ahead,” said the Judge.

Ned looked at Mary and said, “Now you testified that the separation on April 1 began with the abandonment of your husband, right?”

“Yes, that’s right,” she said.

“And was there a time when you decided to agree to the separation?”

“Oh, yes.”

“When was that?” asked Ned.

“About two weeks after he left,” answered Mary.

The rest of the case went smoothly and the Judge granted Mary her divorce.

Anthony Matysek drank quite frequently and humiliated his wife on a number of occasions.  Following an argument with his wife, Marjorie Matysek, on the night of July 25, 1952, he repeatedly told her that she was “no good” and to “get out”.  She said “All right”, and early the next morning she moved to her mother’s home never to return.

Three years later, she sued for divorce based on a voluntary and mutually agreed separation.  Anthony denied that the separation was voluntary, and asserted that it was not by mutual agreement.

The Court of Appeals said that a voluntary agreement to live separate and apart does not have to be arrived at either with “calmness and courtesy or without anger”.

It distinguished the case of Miller v. Miller, where the husband threatened to leave the wife and she replied “Well if you want to go, go on and go, but you are going to have to take care of these children.”

The husband claimed that this amounted to a voluntary agreement to separate.  The court said it was merely to acquiescence in what she could not prevent, and that was not a voluntary agreement.

The difference in the Matysek case is that when the husband demanded that the wife leave, she could have refused.  Instead, she agreed to leave and she did leave.  The Court said:

We think that the language and conduct of the parties on the night of July 25th and the early morning of July 26th were sufficient to support the Chancellor’s explicit finding that the separation was voluntary. At the conclusion of the testimony he said: “I think these people separated voluntarily. They were glad to get away from each other.”

Matysek V. Matysek, 212 Md. 44; 128 A.2d 627 (1956)

When Marja Kaarina Bchara suspected her husband, Adnan Bchara, of adultery in January of 2000, she moved his possessions out of the master bedroom and into the guest bedroom, and sued him for divorce.

At trial the wife testified she took these actions to live separate and apart from her husband.  She stopped attending family functions with husband and his family.  She would not attend church with him.  She stopped depositing money into their joint checking account.   However, she continued to buy groceries, cook, do laundry, and clean house.  She said she asked her husband several times to leave the house, but he refused to do so.

A friend of the wife testified she visited the house once a week and observed the parties living in separate bedrooms.  The wife told her friend that she and husband were no longer “a couple.”   The divorce was granted.  Adnan Bchara V. Marja Kaarina Bchara, 38 Va. App. 302; 563 S.E.2d 398 (Va. App. 2002).

So in Virginia, unlike Maryland, you can get a divorce based on separation while living in the same house.  Also in Virginia, unlike DC and Maryland, a divorce may be granted upon separation for one year if only one of the parties intends that the separation be permanent.  Separation in the same house requires:

  • a separation – you cannot be separated in the same bedroom
  • a clear starting event – here the discovery of adultery, and
  • corroboration – so you need at least one frequent visitor.

You can maximize the likelihood of success by:

  1. a written separation agreement
  2. a clear event such as one spouse moves to the basement or lower level, documented and witnessed
  3. don’t have sexual relations
  4. separate the finances
  5. don’t go out together
  6. tell everyone you are separated and you are getting a divorce
  7. if you have children, don’t have family dinners and don’t drive to their events together

VA Grounds for Divorce