Virginia is one of a handful of states that does not recognize the phrase “legal separation,” but this doesn’t mean you can’t legally separate there. You and your spouse can part ways, then negotiate and sign a separation agreement resolving issues between you. Virginia calls separation agreements “property settlement agreements,” although they address issues of custody as well as property. If you refuse to sign the agreement, your spouse can involve the court to resolve any issues.
Divorce from Bed and Board
If your intention is to separate from your spouse, but not actually divorce him, your spouse can still ask the court to decide issues of property and custody. This establishes a court order to govern the situation while you live apart. The grounds are narrow, but if he can prove that you deserted him, were cruel to him, or put him in “reasonable apprehension of bodily harm,” he can file a complaint for divorce from bed and board. Also called a divorce “a mensa et thoro,” this is Virginia’s version of a legal separation. The legal process is the same as if your spouse filed for divorce; it culminates with a judge making decisions regarding your property and children. However, you’re still technically married after you receive a mensa et thoro decree and neither of you can remarry.
Divorce from the Bonds of Matrimony
If you don't sign a separation agreement because you don’t want a divorce, your refusal won’t stop the proceedings. If you’ve already lived apart for a year, your spouse can file for divorce on Virginia’s no-fault ground. He doesn’t have to prove you did anything wrong to end the marriage and you can’t contest his grounds. However, if he uses a traditional fault ground, such as adultery or cruelty, he must ultimately produce a witness to testify under oath such grounds occurred. You have the right to produce a witness to testify they did not. However, even if you can successfully prove your spouse's fault grounds did not occur, it won’t stop the divorce indefinitely. Your spouse can wait out the year and file on no-fault separation grounds. Ultimately, your refusal to sign the agreement and come to your own terms regarding your divorce will force a hearing with a commissioner and then a trial.
In some Virginia counties, if your divorce is contested, you must appear before a “Commissioner in Chancery” before your case can proceed to a judge. If you’re disputing grounds, the commissioner will take your testimony, and you can bring witnesses with you to substantiate your position. The commissioner will also hear any arguments you have regarding the division of marital property or spousal support. If custody is an issue, the court will probably refer you to mediation to try and work out issues regarding your children. If any of these things remain unresolved, the commissioner will submit a report to the court with his recommendations for settlement; the court will schedule your case for a hearing before a judge.
You usually have the right to sign an agreement with your spouse right up until the eleventh hour before trial. If you sign the night before your court date, you can take the agreement to court with you and tell the judge you’ve resolved your differences. He’ll sign your agreement and convert it into a final divorce decree. Otherwise, you can present your witnesses and testimony, just as you did with the commissioner. If your divorce is not particularly complicated, the judge might issue a decision that day. Otherwise, he’ll send you his decision in writing, along with a copy of your decree.