Legal Question in Family Law in Virginia

Need a divorce while still living together

My husband and I decided the marriage was over back in Oct. 2005 but due to his health problems I have been home caring for him. We sleep apart, basically live like roommates, no children involved. Virginia law states we must live apart for 6 months before filing for divorce but because I have no intention of leaving the residence for several more months I would like to know if there is a way we can divorce while still living together.

Asked on 9/07/06, 10:20 am

2 Answers from Attorneys

James Wilson James H. Wilson, Jr., Attorney & Counsellor at Law

Re: Need a divorce while still living together

You should consult with a Virginia attorney to discuss the application of the law to the facts of your particular situation. The following is quoted from the Court of Appeals case of Bchara v. Bchara, 38 Va. App. 302 (2002), on living separate and apart under the same roof.

“Under Code § 20-91(A)(9)(a), a divorce may be granted “[o]n the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.” This statute requires “proof of an intention on the part of at least one of the parties to discontinue permanently the marital cohabitation, followed by physical separation for the statutory period.” Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975). Determination of whether and when the parties have “lived separate and apart without cohabitation” is a fact-based inquiry, requiring examination of all the circumstances before the court. Cf. Rickman v. Commonwealth, 33 Va. App. 550, 557-58, 535 S.E.2d 187, 191 (2000)...

In January 2000, wife found a videotape showing husband involved in an adulterous affair. She immediately took all of husband's possessions out of the master bedroom and put them in a guest bedroom, where husband usually slept. A friend of wife was in the house when the tape was discovered. [Page 311]…

Wife testified she took several actions to live separate and apart from husband starting in January 2000. She stopped attending family functions with husband and his family. She would not attend church with him. She stopped depositing money into their joint checking account. However, she continued to buy groceries, cook, do laundry, and clean house.6 Wife asked husband several times to leave the house, but he refused.

…A friend of wife testified she visited the house once a week and observed the parties living in separate bedrooms. Wife told this friend that she and husband were no longer “a couple.”…

This evidence is sufficient for a trial court to find the parties were living separate and apart without cohabitation. The parties no longer engaged in sexual intercourse. Husband openly continued a sexual relationship with another woman. Wife stopped attending functions with husband. Continuing to share food and keep a clean house are not behaviors that, as a matter of law, require a finding that the parties were living together. See Chandler v. Chandler, 132 Va. 418, 428-31, 112 S.E. 856, 860-61 (1922) (finding desertion does not require neglect of all aspects of the marital relationship). Wife intended to permanently discontinue the marital relationship when she moved husband into the guest bedroom. See Hooker, 215 Va. at 416-17, 211 S.E.2d at 36…”

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Answered on 9/07/06, 11:25 am

Fred Kaufman Fredrick S. Kaufman, Esquire

Re: Need a divorce while still living together

Yes you can. The case law changed a few years ago that the courts will now recognize a no fault divorce with people living in the same house.

A no fault divorce requires separation which is continuous, without interruption and without cohabitation.

The case law is specific about what constitutes separation in the same house. Things like separate living quarters, bank accounts, schedules, social lives, or in the reverse ceasing to do things married people do - shop, go to church, take out loans with each other, file taxes together, etc.

A six month divorce requires no underage children and a separation agreement.

As always see a good lawyer. That's the best advice.

Good luck.

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Answered on 9/07/06, 10:56 pm

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