You Do Not Need a “Separation Agreement” To Prove That You Are Separated

You do not need a written agreement in Virginia to establish the fact that you and your spouse are separated. One of the grounds of divorce in Virginia is living separate and apart for 12 months (6 months if you do not have minor children and if you have a signed agreement fully resolving all issues arising out of your marriage). Whether or not you are separated is purely a factual issue that the court will determine. To be separated, two factors need to coincide: (1) physical separation; and (2) one of the spouses must form the intention to remain permanently living separate and apart.

The method by which you prove to the court that you and your spouse are separated depends upon whether you settle your case prior to trial or actually have a trial. If your case does not settle and you proceed to trial, you will testify to the facts that you and your spouse were physically separated and one of you formed the intention to permanently remain separated. Virginia law requires that you have “third-party corroboration;” thus a friend, neighbor, or relative will need to come to court to testify and corroborate that you and your spouse were truly separated.

If, however, you settle your case prior to trial, then you have two options: (1) you can still go to court with your witness and present testimony (often called an “ore tenus” hearing), or (2) you can conduct what is called a “divorce deposition” or a “no-fault deposition” that takes place in the attorney’s office. A court reporter is present and I ask both you and your witness the necessary questions to establish that you are separated. The court reporter then transcribes the testimony, and the transcript is mailed to the court. Under this approach, you do not need to appear in court to finalize the divorce. Typically neither the other spouse nor his/her lawyer attends the deposition, which only lasts approximately 15 minutes.

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