Dating during marital seperation

Virginia courts distinguish desertion from separation by looking at the specific behavior of the parties.

Courts have consistently found that one party moving out of the marital bedroom or even the marital residence does not by itself show that a desertion has occurred.

Instead, a finding of desertion requires that one party has ceased performing their marital duties, which can include but are not limited to providing financial support or contributing to marital bills or debts, and providing emotional or physical support.

Separation, as distinguished from desertion, is separating from your spouse, either in the home or outside, while still operating under the rules and standards of the marriage, such as division of the marital obligations and duties.

By use of such a document (also frequently referred to as a “marital settlement agreement” or “property settlement agreement”), a couple may agree to live separate and apart, and to divide their property and debts in a mutually acceptable way.

Where the parties have minor children, they may also provide for child custody, visitation and support in their separation agreement.

Virginia law allows for no-fault divorce on the grounds of (a) separation for one year or (b) separation for six months with a separation agreement in place and no minor children.

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How does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion, which is a fault-based ground for divorce?

Finally, the parties may include various other provisions in their agreement, such as language providing for the payment of spousal support (alimony).

Separation agreements usually provide that any divorce of the parties will be on the no-fault ground of separation.

So, what does it mean to live “separate and apart” for purposes of a no-fault divorce on the ground of separation in Virginia?

Caselaw provides for a number of different indicia of a “separation” for these purposes.

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