Separate and Apart Under the Same Roof?

Posted on April 04, 2010 in Civil Litigation, Divorce

Virginia Code Section 20-91(A)(9)(a) permits the granting of a divorce after the parties have lived "separate and apart without any cohabitation and without interruption for one year." Only six months is required if the parties have entered into a separation agreement and do not have children in common.

In today's difficult economic times, many couples cannot afford the cost of two residences. They wonder whether they can live "separate and apart" under the same roof. The short answer is yes.

Virginia case law is clear that couples may live under the same roof and still live separate and apart. See Bchara v. Bchara, 38 Va.App. 302 (2002). The court will examine the particular circumstances in each case to determine whether the parties have in fact lived separate and apart. There is not a finite list of circumstances which a court might consider, but generally courts will consider such factors as whether the parties have been sharing a bedroom, whether they have been having sexual relations, whether they have separate bank accounts, whether they are seen together in public, whether they hold themselves out as a married couple, whether they share household duties (shopping, cooking, cleaning, maintaining the home, etc.), and the like.

There is no sure set of factors which will establish that you are living separate and apart from your spouse under the same roof. The courts must evaluate each case based upon its particular facts.