To be granted a no-fault divorce in Virginia, a couple must be separated for 1 year (6 months if they have no minor children together and they’ve signed a comprehensive settlement agreement).

What, though, constitutes “separate and apart,” under Virginia law?  Living in separate residences certainly counts.  However, what if a couple lives separately, but in the same residence? Does that count?

The answer:  Sometimes. It’s commonsense that to be considered separated “under the same roof,” a couple must sleep in different bedrooms and refrain from sexual relations.

However, a knowledgeable Northern Virginia divorce lawyer will tell you that there’s more.  A husband and wife must stop doing the sorts of things that husbands and wives do for one another that they typically don’t do for non-family members.

When determining whether a couple is truly living separate and apart under the same roof, a Fairfax County Circuit Court judge will also ask questions like:

  • Does each spouse prepare his or her own meals?
  • Does each spouse shop for him or herself?
  • Do the spouses eat meals together, apart for when their children are present?
  • Does each spouse care for his or her own space in the residence?
  • Does each spouse do his or her own laundry?
  • Does the couple hold themselves out as man and wife? (e.g., socializing together).
  • Does the couple go to church or synagogue together?
  • Does the couple give one another holiday or birthday gifts?
  • Has the couple shared with others that they’re separated?