As we discussed in this post, , the way we talk about whose “fault” things are in everyday life is not quite the same as legal fault. In divorce law, the types of fault divorce are adultery, cruelty, desertion, and conviction of a felony with at least one year of incarceration. But what if one of these grounds does not apply to you? Are you just stuck being married forever?
Of course, the answer is no. Virginia has a “no-fault” provision for divorce based on separation. There are two different tracks for this:

  • If you don’t have children and you are able to agree on how to divide up the property in the marriage, you can get a no-fault divorce after being separated for six months.
  • If you have children and/or you are unable to agree on division of your property, you can get a no-fault divorce after being separated for one year.

What is Separation?

Separation is what it sounds like: You and your spouse are living in separate homes. Although sometimes you may hear people say they are “legally separated,” there is no court action signaling separation at this point. You simply move out (or your spouse moves out) and maintain separate homes. There are a few important points about separation that make it “count” for divorce purposes.

  • 1. It must be uninterrupted. If one of you moves back in and you start living together again, it resets the separation clock.
  • 2. At least one of you must intend for the separation to end the marriage. One of the requirements of a divorce based on separation is that at the time you separated, at least one of you must have intended for the marriage to be over.
  • 3. It’s important to have a witness. When it comes time for the divorce to go to court, you need to have at least one person who has observed that you are living separately from your spouse who can vouch for when the separation date was. For most people this is a family member or close friend who is over to your home often and can see that you are no longer living with your ex.
  • 4. You can live separately in the same house…maybe. Because maintaining two households is very expensive, some people decide that they will “separate,” but still live in the same home. Courts will sometimes approve these, but they examine these “separation” agreements more closely to be sure that this is a true separation. For example, having spaces with separate entrances to the home, not having any shared spaces in the home, not having family meals together, and having witnesses to attest that this was a true separation would be factors that weigh in favor of this counting as separation. If you have children, the court will scrutinize this even more closely.

No-fault divorce is much less expensive and complicated than a divorce based on fault. However, even if you and your ex agree on all the issues, you should still consult with a family law attorney to make sure your documents contain all the required legal language. Drafting a settlement agreement that addresses everything it needs to have, explaining child custody and support, and helping you to understand your rights are all good reasons to consult with an experienced family law attorney when divorce is on the horizon.