Q: In VA, 12 mnths of separation is req'd w/ minors before divorce. Do I need notarized separation agreement to prove date?
I know in VA, a legal separation agreement is not always (or ever?) necessary. But we are separating under the same roof which I realize complicates things. We started this beginning of August, and have done everything on the "separation list" that we found in our research (separate bedrooms, etc)... except, we still currently have joint bank accounts (working to separate those). I have a separation agreement drafted (dated August), but it's now November and we don't have it signed as we've been working out details. Bottom line, an entire year seems a long time to wait to file and I don't want to add additional roadblocks to prolong this process...
While the Virginia Court of Appeals has decided that it is possible for spouses to live separate and apart under the same roof, not all Circuit Court judges readily accept that idea. The idea is more popular in certain areas of the state, such as Northern Virginia, where the costs of housing is that much more greater. To some judges, joint bank accounts, along with other indicia, show that you are not separated.
The reality of divorce is that ex-spouses take to separate residences, and largely live separate lives after divorce. The waiting period for divorce serves a worthwhile purpose, to determine if the parties cannot reconcile as husband and wife. Rarely is there any reason to rush a divorce. If you will end up living under separate roofs, why delay the actual change to separate residences? In a sense, it is an attempt to defeat the purpose of the separation.
To correct one of your statements, fault-based divorces can be filed immediately, some as a divorce from bed and board, and some as a divorce from the bond of matrimony.
Anyone facing divorce in Virginia should consult with an experienced Virginia divorce lawyer.
A: You do not need a Separation Agreement document to establish your date of separation. That date will be stated in such an Agreemenet though. Your spouse cannot refuse to sign a Separation Agreement to forever delay your separation period for example. Your date of separation is largely up to you all--unless somebody wants to go to court and fight over it. This happens, but it is rare. When someone communicates that they want to separate--heading toward a divorce, and somebody moves (in house or out to an apartment), that is typically your date of separation. As long as there's no collusion or attempt to sidestep the law for some reason, you're going to be OK with that date. People are often separated for a time with a joint bank account, especially if they own a home and/or have children together. My advice is get to a local Family Law Mediator or Attorney to get this worked out. Our best to you.
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