Let me first put a word in for marriage counseling. It's like the Reader's Digest column of many years ago: "Can this marriage be saved?" I firmly believe that people often decide to separate for the wrong reasons, or sometimes for no reason at all. So, if you are thinking of separating from your spouse, take a moment (heck, take two moments) to contemplate what you are thinking of doing. After all, you once loved this person enough to get married. Could you have been so wrong back then?

What about the fact that you (assuming you got married in a Judeo-Christian marriage and maybe in more kinds of marriages) exchanged vows to keep this marriage going until death do us part. That oath should mean as much to you now as it did the moment after you uttered it, however long ago that might have been. To me, it's not enough that your spouse has gotten fat, or lost his or her teeth, or picks his or her toenails in bed, or has become addicted to the Internet. It's up to you to try your best to fix things, and to take advantage of the dozens of resources out there in an all-out effort to save your marriage.

There are professional marriage counselors, marriage encounter weekends, church activities, all sorts of programs staffed with dozens of earnest social sciences types who would like nothing better than to help you and your spouse regain what it was that attracted you to each other in the first place.

You did not get into this marriage casually, and you should not try to get out of it casually.

FAQS:

I've already gone through marriage counseling, and it just didn't work. I can't stand my spouse and I want to get out of this marriage! Now what's your best advice?

Thankfully, under Virginia law, you are not required to continue to live with your spouse against your will. You are free to leave at any time, for any reason or none at all.

That sounds too good to be true.

It may very well be. In reality, the only time you are really "free" to leave a marriage is where there is no marital property to be divided, no chance of your spouse asking for spousal support, no chance of your needing spousal support, and there are no children at issue.

OK, what if we do have children?

If you do, then you have to ask yourself "With whom would the children be better off?" If you plan to leave, you almost always have to answer that question with the name of your spouse, if for no other reason than the fact that the children will be able to continue to reside in the home they have grown used to, surrounded by their familiar neighborhood and all their friends, and close to their accustomed schools.

If, after considering all these factors, you can still honestly answer the question that the children would be better of with you, then you'd better take them with you because there is, practically speaking, no way you are going to convince a judge to give them to you after a hearing as much as a year later.

Before you even consider such a drastic step, however, you must have a long talk with me. If you do this the wrong way you could get charged with parental kidnapping, which is a serious crime.

My wife says I have to leave - do I have to?

In a word, no. It never ceases to amaze me, the number of clients who come to me saying their spouse "threw me out". If I do nothing else with this web site I hope to dispel the notion that either spouse has the right to open the door, point their finger out and say "Get out and stay out" and have it carry any force of law. If you and your spouse have established a marital domicile, neither of you has the right to order the other to leave.

Even if the house is in her name?

Even then. This is a common scenario where one party owns a home prior to the marriage and the other party moves in after the wedding. The house is the separate property of the spouse in whose name it is titled (but then you already know this because you just finished reading the section on marital property) but that fact alone doesn't give the owner spouse the right to kick the non-owner spouse out.

Even if we can't get along, and fight all the time?

Well now, wait a minute - when you say "fight all the time", that isn't by any chance a polite way of saying you smack her around a little on Saturday nights, is it? Because if it is, you have just hit the exception to the rule: practically speaking, the only way one spouse can have the other spouse forcibly removed from and barred from re-entering the marital domicile is to convince a judge that the petitioning spouse has a well founded fear of physical harm at the hands of the other spouse. To make this exception work one spouse has to show up at the door of the local Juvenile & Domestic Relations District Court and convince an intake worker and then a judge that (a) this spouse has been the victim of an assault by his or her spouse in the recent past, and (b) has a darn good reason to believe that he or she will be the victim of another assault in the very near future unless the offending spouse is removed from the house pronto. Even then, once this order, which is called a preliminary protective order, is entered, the offending spouse can only be removed from the marital residence for 10 days, within which time there has to be a full hearing at which time that spouse will have a chance to persuade the judge that he or she should be allowed back in.

My husband says he's going to leave next weekend. I don't want a divorce. Isn't there anything I can do to prevent this?

In a word, "no". Under Virginia law it doesn't matter if you don't want the divorce, as long as your spouse does. There is also no law that compels a spouse to live with the other spouse against his or her will - that would be against the Constitution.

My wife and I have decided to separate and that I should be the one to leave, but I'm concerned about what you said about Desertion. Is there anything I can do before I go to protect myself?

In a word, "yes". In fact, there are several things you can and should do:

• Tell your spouse your plans well in advance. Domestic relations is a lot like diplomacy between nuclear super powers. Before the U.S. sends up an atmospheric research missile over Greenland we make sure the Russian air defense people are notified in writing several days in advance, so they aren't startled by the sudden appearance of one of our missiles on their radar screens. By the same token, you really don't want your spouse to return home from work one day to find the front door swinging on its hinges and all the furniture moved out.
• Make a list of what you will be taking with you (or for which you will return at a later time) and get your spouse to sign it. If possible, take pictures to show what the property looked like when you left.
• Ask me to prepare an "Agreement to Separate" that will make it clear you are leaving with your spouse's consent.
• If children are involved, for goodness sake talk about what's in the best interests of the children. Don't just snatch the children, because a judge will very likely just snatch them right back.

My husband and I want to separate, but we can't afford to maintain two separate households. If he moves into the den, can we still qualify for one year separation?

Usually one of you has to actually move out to get the one-year (or six month) clock running. However, you can still get the divorce even while living under the same roof, but only if (a) your house is big enough so that you and your spouse can actually live there while not having much of anything to do with each other (not just having sex, but also refraining from doing all the other things that husbands and wives normally do for each other, such as washing each other's clothes, shopping for each other's food, preparing meals together, eating meals together, keeping a joint checkbook, etc.) and (b) there is someone in the house on a daily basis to be able to corroborate the fact of your separation. An adult child will do, or a housekeeper, or a boarder or mother-in-law, etc. Someone who can testify that you do indeed treat each other as if you were nothing more than boarders in a rooming house.

Still, it's difficult to prove, because judges are naturally skeptical that a husband and wife could be separated while still living under the same roof. If you must do it this way, be sure to see me so that we can plan it successfully.

When are you going to tell us about those Separation Agreements?

I was just getting to that. A Separation Agreement (or property settlement agreement, or custody and property settlement agreement - the terms mean the same thing) is an agreement between two spouses as to the important issues concerning the marriage - child custody, visitation and support, spousal support, division of marital real and personal property, pensions, taxes, joint debts, attorney's fees, in short everything that needs to be decided in order to arrive at an equitable breakup of the relationship. I realize you probably have a friend or family member who just went through a separation or divorce and is willing to let you copy his or her agreement, but please, please, don't attempt to draft such an agreement by yourself. These things run longer than four pages even in the simplest cases and it is absolutely necessary that you employ an experienced attorney to draft it. Otherwise you will be tempting fate, and the chances are you will end up with an agreement that either doesn't all the possible eventualities, or isn't clear as to an essential provision, or leaves an important concept out altogether. No matter what others may say, there is no such thing as a "standard" agreement. I've probably drafted a thousand, and I've never been able to do one yet that was exactly like any other that I've done.

One of our first tasks will be to prepare a draft agreement. This is best done in my office and at a time when you have at least an hour to spare me, because it will probably take every bit of that time to go through my master agreement form, which will make sure that we cover all aspects of the situation.

When we are done we will have an agreement that is fair and that you will be able to sign. You can then either give it yourself to your spouse, or I can mail it to them along with a nice cover letter. Then, your spouse can either review it themselves or get an attorney. In either case we open negotiations and try very hard to reach an agreement as to terms quickly. Speed is essential because whatever era of relative good feeling exists currently will surely, in time, fade. My goal is to have an agreement signed and in place long before that time rolls around.

My best friend used a Mediator - could mediation right for us?

It certainly could be and it may very well be worth a try. Divorce mediation involves the spouses and their attorneys coming before a neutral party (usually a domestic relations attorney with a lot of experience) who listens to both sides and attempts to act as a catalyst to facilitate talks between the parties.

Mediation is voluntary, and the mediator never makes a ruling on any point. Either party can always walk away if they don't like the way the talks are going. Still, mediators can use their experience to show parties how they are being unreasonable and can suggest alternatives to broker a deal, so they can be very valuable.

Still, I can't shake the impression I get from some mediators that they view it as essential to separate the parties from their respective attorneys as a pre-requisite to starting the negotiations. It's as if some mediators view the attorneys as obstacles to achieving a settlement, rather than as facilitators. Whenever one of my clients goes to mediation I always go with him or her. Otherwise, what am I there for? With all due respect, most of my clients wouldn't know what a fair deal looks like if it crawled into their ear and gave birth to a litter of little fair deals! The reason is not because my clients are dense -- it's because they just don't know the law, and they just don't know how judges in this area interpret the law.

By the way, since the attorneys should go along on the mediation sessions, this means that mediation is definitely not a way of saving money. For this reason I feel that mediation should be used as a way of facilitating negotiations that have stalled even after the attorneys have tried for some time to broker a deal. I'm not in favor of going to mediation as a first step.

SECTION IV - If You've Already Separated