As always, before reading this post please review my disclaimer by clicking the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
In my very first blog post, I explained how if your spouse, regardless of gender, regardless of reason, demands that you "get out," your answer should be "no." There's a flip side to that issue, however. What if you are trapped in a miserable marriage, a broken marriage, one that needs to end, but you know you need to be separated for a time for a divorce to happen and your spouse is refusing to leave? What do you do then?
Today's blog post discusses strategies for properly starting a separation so that you can begin the process towards a divorce.
Agreements are Always Easiest
I know some people might find this surprising for me to say, but in my experience, most couples getting ready to get a divorce actually still get along fairly well. You may not love each other anymore, but you still have at least some feelings of friendship towards each other and certainly do not want to hurt one another (frequently that desire comes later, but I'm not talking about that right now). My boss likes to refer to this as the "era of good feelings," and it's the perfect time to sit down with your spouse and discuss what each of you wants out of your divorce.
This discussion should include the separation itself, specifically who will leave, or maybe even if both of you will leave and sell or get rid of the place. The discussion should also include who will pay the mortgage/rent and other costs associated with the marital residence. If you are able to make an agreement that would certainly be best, but I strongly recommend you commit your agreement to writing so that the staying spouse cannot later accuse the leaving spouse of "desertion," and so that your obligations will be clear.
Of course, I always recommend that this agreement be done as a formal "Agreement to Separate," which an attorney can draft for you, but laying it all out in writing in an e-mail with a response e-mail confirming agreement should usually suffice. You can disprove "desertion" simply by producing evidence of agreement, even if there is no signed paper. When handled this way, separations tend to be less contested and usually get the whole process off on a good footing towards settlement.
Pendente Lite Motion in Fault-Based Divorces
If you cannot reach an agreement, the next route to consider is whether or not you have grounds for a divorce on a fault basis. This would include adultery, desertion, cruelty (physical abuse), and mental cruelty. If you do, you can file for divorce without a separation (although all of these except adultery require a year of separation eventually before your divorce is final). Once you do, you can file a pendent lite motion (a motion "pending the litigation") to get the court to order your spouse to leave and give you exclusive use and possession of the marital residence.
Now, there are some major considerations to this approach. First of all, filing for divorce on a fault ground is usually taken as a declaration of war. Do not take this approach unless you are ready for a real fight. Second, courts do not like to "create" separations. While some courts believe that they have jurisdiction to order exclusive use and possession pendente lite even without a threat of violence (this is actually a debated point), almost none will if you are still living together. As a result, it is unlikely your request for exclusive use and possession will be granted if you are still living together unless there's a real threat of violence, and if that is the case, you might want to consider getting a protective order as a much more effective and protective alternative than a pendente lite order. This approach may be better since a protective order is immediately enforceable by the police, whereas a pendente lite order typically requires a contempt hearing if violated.
Now, if you are filing based on "desertion" or something similar where your spouse has already left the marital residence and you are just trying to keep him from coming back, that is more likely to be successful. Nonetheless, it is still not a guarantee.
Separation Under the Same Roof
If none of the above works and you have a home that is big enough, you could initiate a separation under the same roof. My blog post on pre-divorce separation and cohabitation includes a section on how to separate under the same roof. This approach allows you to be separated for the requisite time and then file. Presumably, if the court finds you have met all the requirements, a court will order how the marital residence is to be divided as part of the divorce decree. Of course, this requires you continuing to live in the same house with your spouse all the way through the divorce, which could be a problem if your divorce gets nasty.
Moving Out
If none of the above options are available to you, then I'm afraid you may have little choice but to just move out yourself. We always recommend this as a last resort because you can practically guarantee you will not be awarded the marital residence if you do this, and if you have kids you almost definitely will not get custody if you leave them behind, but you could very well also hurt your custody chances if you take them with you - especially if you do it without the knowledge or consent of your spouse. Further, this risks subjecting you to a "desertion" claim, although a showing that the marriage was already broken could probably defeat such a claim. Nonetheless, if your spouse won't leave, you don't have a fault ground for divorce that would get you a court order, and you can't separate under the same roof, this may be your only option to get the clock ticking on the separation. If you take this option, try to leave in the least disruptive manner as you can, and if you have kids, take them with you (unless you don't want custody) but make sure you are moving to somewhere very close by (the closer, the better - if the apartment next door is available, go for it).
Conclusion
In some cases, actually initiating the separation period is the hardest part of a divorce. It is not a simple process precisely because you cannot demand that your spouse leave. If you are looking to get advice on beginning a separation, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour, and anything you tell us is kept confidential under attorney-client privilege, even if you don't hire us.
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