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Can You Separate While Living Under the Same Roof?

September 27, 2019

The separation period is a key element of no-fault divorce. Yet many couples face a dilemma due to the difficulty and expense of one spouse or the other finding a new place to live. One question our attorneys have encountered is whether, in Virginia, a married couple can be separated while living under the same roof. The article below provides a good summary of the issues involved and some practical tips for those who find themselves in this situation. 


by Charles Hofheimer

Judges don’t favor in-home separations in Virginia, but there are exceptions. If you’re getting a divorce in Virginia, speak to an attorney to discuss your separation options.

Due to many states’ favorable stance on family and marriage, separation stipulations can be extremely stringent, such as for those seeking divorce in Virginia. If you’re considering cohabitating during your separation in Virginia, you should know that judges are less likely to grant your divorce readily.

Understanding Cohabitation and Collusion

States do not favor separations in which the couple lives at the same residence. If you intend to get a divorce in Virginia, the court requires that you present yourself as a separated individual. Living together and appearing to be married in the public eye can be seen as contradiction to your “intent to separate.”

What it boils down to in the judge’s eyes is that you cannot cohabite while undergoing a legal separation. Cohabitation is defined as living together as married, and whether you and your husband are intimate or not makes no difference to the law.

Simply “appearing” to be married while living together is enough for a judge to label the living arrangement as cohabitation. Even worse, the courts could view your situation as collusion, which is where a couple fraudulently claims to be separated.

Living “Separate Under the Same Roof”

Even though judges don’t favor an in-home separation in Virginia, they do make exceptions in special circumstances. If you and your spouse endeavor to live “separate under the same roof,” you’ll want to adhere carefully to these guidelines:

• Use separate bedrooms and don’t engage in intimacy.
• Don’t shop for each other or use each other’s purchases.
• Don’t eat meals or socialize together.
• Use separate computers, cell phones and bank accounts.
• Make your separation known to friends and relatives.
• Have a third party come to your house occasionally to verify the living situation.
• Don’t pretend to be a happy couple in front of neighbors.
• Be prepared to give viable reasons for living under the same roof.

One of the risks you run with living together while being separated is that the judge won’t believe your story and will instruct you to continue your separation for another year. This will stall your case, causing financial and emotional strain, so make sure it’s really something you want to pursue.

Valid Reasons for an In-Home Separation

While the judge may not favor an in-home separation, there are times when it may be valid and necessary. Financial considerations are a large factor; during a separation, funds can be limited, and maintaining two residences may just not be possible.

Sometimes, parents of young children prefer to live in the same residence for a period of time at the onset of their separation to help ease the children into the new family dynamic.

Speak with a divorce attorney about exactly how to follow the court’s guidelines on in-home separations and how to prepare your reasons to present to the judge carefully.

A good rule of thumb is simply to act honorably. Don’t try to trick the courts and claim to be separated when you’re not. You’ll have to create a clear plan with your spouse on the new living arrangements and strictly adhere to the separation in order for the judge to grant your request for divorce.

This article originally appeared at HG.org Legal Resources.