Full question:
My wife and I have been separated from one year tomorrow. We have two children, ages 4 and 7. We used to live in FL and June of last year my wife took the girls and moved into her mom's house in VA. I made trips on average once every month to month and a half to come and see the girls. During those visits, I would stay at my mother-in-laws house and sleep in the same room as my wife, though in a separate bed. As of May, I relocated to within a 3-hour drive of my wife and children and we maintain a similar arrangement of where she stays at my apartment sometimes on the weekends and/or I stay at hers. We have not had sex in over a year and both parties are willing to testify to that effect. Question is does the last year qualify as been separated?
- Category: Divorce
- Date:
- State: Virginia
Answer:
The determination of whether you are considered separated is subjective and depends on the circumstances. Generally, separation implies living apart, which usually means not residing under the same roof. Most courts require parties to have separate addresses to be considered living apart. Simply having separate bedrooms in the same house does not constitute a separation. Cohabitation is not specifically defined by statute but is typically understood as living together in a manner similar to a marital relationship. Engaging in sexual relations is not necessary to be considered cohabiting. In Virginia, a divorce can be granted if the husband and wife have lived separate and apart without any cohabitation for one year (Va. Code Ann. § 20-91). The courts have defined "cohabit" as living together as married persons do. While sexual relations are a factor in determining cohabitation, it also includes the overall condition of living together and fulfilling marital responsibilities (Johnson v. Commonwealth, 152 Va. 965, 970, 146 S.E. 289, 291 (1929)). Therefore, based on your description, living apart for the past year may qualify as separation, but the specifics of your arrangement could impact that determination.
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