Try, try again to reconcile. Just because you have separated doesn't mean you have to stay that way, or that you have to get a divorce. Consider this to be a "trial separation", and do what you can (within reason) to get back together. Attend counseling sessions. Go to couples weekends at your church. Use the dozens of organizations out there who would love nothing more than to help you and your spouse get over whatever it is that has torn you apart. Keep in mind what I said at the beginning of section II: you once loved this person enough to vow to spend the rest of your life with him or her. Sure, you know a lot more about this person now than you did then, but isn't it possible that you were right then and wrong now?

As long as you stay separated for more than a year you can file for the divorce on the "no fault" ground (see section I). If you have no minor children and you and your spouse have both signed a Separation Agreement you can file for the divorce after a separation period of only 6 months.

Ordinarily I will not file any papers in the Courthouse until you have the six month or 1 year separation period under your belt. This is because in the usual case people just don't need the intervention of the court system before that time, and I don't want to waste my time or your money.

However, there are times when you should contact me during this period. You should certainly contact me if your spouse is refusing to pay child support, or becoming nasty about the children in any way, or refusing to do something you really need done (such as paying their share of joint bills, or breaking into the house after they've gone, or stealing property, or refusing to sign important papers, etc.). When in doubt, please don't hesitate to call me.

FAQs:

When is the right time to start negotiating a Separation Agreement?

Right now. There literally is no time like the present, because right now (if you are like the vast majority of cases) both you and your spouse are probably of a mind to get this relationship behind you. Neither of you wants to take advantage of the other, you just want what's fair and to get on with your lives. I call this the era of good feelings. The problem is that this era will not last, and sooner or later (if you don't get back together) one or both of you will end up either wanting more than you originally said you would take, , or refusing to do what you said you would do. I view my job as utilizing this era of good feelings to your advantage to push through an agreement that is fair that you can rely on to safeguard your rights and that will stand up when, inevitably, somebody does something bad.

Does my wife need to have an attorney, or can you represent both of us?

Your spouse may have an attorney or not, as he or she chooses. I will make it clear to them, however, both verbally and in writing, that I am your attorney only, that my task is to safeguard your rights, that I therefore am not impartial.

My husband says you don't know what you're talking about, and I don't stand a chance.

Probably one of the hardest things about separation is realizing that the person you loved enough to marry may no longer be worthy of your trust, and, even worse, may start downright lying to you in order to get their way. I've been doing this since 1976, and I've found that, as a general rule, when my clients follow my advice they almost always do just fine. Therefore, when somebody tells my client that I'm giving them bad advice I understandably get a little hot under the collar and begin to suspect the motives of the one who made the allegation.

The reason I have chosen domestic relations as my area of emphasis is because this it's the area of law out of which I get the most professional satisfaction. I really do get a lift when, during one of my free initial consultations, I can take a person who has been beaten down by their spouse for years, told they have no rights and will get nothing if they stand up to their spouse, and tell them that they in fact do have rights and that they have a whole host of people (among which are myself) who are ready to help them and support them. To see that same person leave my office walking taller, no longer crying or afraid or beaten down, is a great feeling indeed. Every time I see it I remember why I went to law school in the first place. But I digress. . .

You have to realize that the same person you loved enough to marry, and upon whom you have depended for lo these many years, is now your adversary and has a motive to lie to you to get you to do things you shouldn't do, or to refrain from doing things you should do.

The next time your spouse tells you I don't know what I'm talking about, or their attorney says different, or I'm giving you bad advice, please call me to discuss it. I'll explain to you how I'm right or I'll admit I'm wrong.

If it helps, think of your spouse as temporarily insane, because I am convinced that the stresses of separation do indeed drive most people at least a little insane. If you accept the fact that your spouse is not in their right mind it will make it easier to grapple with the concept that they could lie to you or take advantage of you.

Do we have to register our separation at the Courthouse to make our separation legal?

No. In some states you do, but in Virginia you don't. In Virginia any separation is "legal". Just be sure that you can produce a witness (called a corroborating witness) at the final hearing or deposition in your divorce case that can swear that you separated on the date you say you did, and that you've been separated ever since. Make sure this person visits you at your new residence a few times so that they can be sure that you and your spouse haven't resumed living together.

What kind of things should we put in the Separation Agreement?

When you say "we", I hope you mean "you and me", not "my spouse and me". Drafting a separation agreement is a lengthy, painstaking process that simply cannot be done well if done quickly, and absolutely must be done with the help of a lawyer.

Separation agreements come in all kinds and lengths, and there is no such thing as a "standard" one. Every case is, after all, unique. However, each separation agreement usually will have a paragraph dealing with each of these topics: a Non-interference clause that says that neither of you can molest the other, a Child Custody clause, a Child Support clause, a Spousal Support clause, a clause concerning how to make Adjustments in Support, a clause concerning Property Division, a clause concerning division of Pensions, 401(k)s, Military Retirement, and the Like, a clause about how to pay Joint Debts, one about all the various issues surrounding Taxes, a clause about what to do if you have a Reconciliation (don't laugh, it happens frequently!), a very important clause about How to Change the Agreement Once it's Signed, an equally important one about What to do When Someone Violates the Agreement, and about half a dozen more clauses at the end which are technically known as The Fine Print.

Very often separation agreements will go through a number of drafts before all the clauses are the way the parties want.

Once we get the Separation Agreement signed, can we change it?

Yes, and sooner or later you probably will need to change it, simply because your situation will change over time. You are best off by calling me to prepare an Addendum. This is most important concerning the monetary issues, especially the payment of support, because the rules in Virginia are very strict on this subject. The golden rule for all changes in a separation agreement is Get it in Writing and Signed by Both Parties! If you don't sooner or later your spouse will forget about that little verbal agreement you both made, and it may end up costing you big money.

For example: let's say the separation agreement requires you to pay $500 per month in child support to your spouse. Let's say that she calls you up one day and says "Jenny just got accepted for ballet school, but they need a $1,500 tuition deposit by next week and I only have $500. Can you help?" Now you know that Jenny lives for ballet and would be crushed if she couldn't go to ballet school so of course you say "okay" and you start writing a check. Somewhere in the back of your mind, though, is a little voice shouting "Get it in Writing and Signed by Both Parties!" You ignore the voice and write the check to the ballet school. A month later you get a call from your spouse's lawyer, who wants to know when she can expect the monthly child support check, which is now a week late. You protest, saying "Hey - I'm two months to the good!" Unfortunately, you didn't get it in writing, so under Virginia law you have just made a gift to Jenny of the tuition for the ballet school because it wasn't paid in accordance with the agreement (i.e., wasn't paid to your spouse), and you still have to write a check for the child support!

"Okay", you say, "what if I wrote the check to my spouse instead?" Same result, since Virginia law treats any amount you give your spouse over and above the amount of support due for that month (including arrearages) as a gift to the extent of the excess amount.

"Okay, okay" you say, "what if I get her to sign a piece of paper that says I get to take a two month vacation from support if I front the money for the ballet school?" Now you're catching on! Assuming your agreement hasn't been incorporated into an order of court, you have just made a valid addendum to the agreement, and you don't have to pay the child support for those two months. However, if your agreement has been incorporated into a court order you need to get the court's permission as well, which means preparing an agreed order to be shown to a judge.

What if my wife refuses to abide by the Separation Agreement?

You have a choice of remedies, depending on the stage of your separation and/or divorce and the provision that your spouse has disobeyed. First, please understand that a Separation Agreement is a binding contract, just as if it was a contact to purchase a car. By signing the agreement both parties bind themselves to obeying each and every substantive portion, not just the portions they feel like obeying. Therefore, your first remedy is a lawsuit. This works okay if your spouse has disobeyed a monetary provision of the agreement, but if she has disobeyed a non-monetary provision (like, for instance, the provision that says that she agrees not to criticize you or your family in front of the children, or the provision that says she will allow you to make one phone call a day to the child, or so on) you can't really sue for damages because you haven't really suffered a loss that can be expressed in money. So, your second remedy is to file a petition for contempt with the court, by which your spouse is brought before the court and, if your spouse can't give a good reason for violating the terms of the agreement, the court can impose a penalty, which can include a fine, reimbursement for your monetary damages, attorney's fees, and even a jail sentence suspended on condition your spouse doesn't do it again! This is a powerful tool indeed, but it necessarily assumes that you have a case pending in the court, or have a final decree. If you don't have a case pending in a court I may advise you to let me go ahead and file one, just so the agreement can be incorporated into the terms of a court order, so that then we can file the petition for contempt.

What if my husband fails to pay the agreed amount for support?

This is probably the most frequently asked question I get about separation agreements. The answer is the same as in the previous paragraph. This is one of the occasions that I wouldn't hesitate to get a petition on file in a court, so that the contempt power of the court can be invoked. In addition I can file for an Income Deduction Order, which is nothing more than a wage garnishment, as long as I know where he works. Finding this information out is getting easier all the time, with the expansion of the internet.

My wife calls me 10 times a day and parks her car in my condo parking lot. What can I do?

If you have a separation agreement, she's violating it and the above paragraphs apply. Even if you don't have such an agreement, I can file a petition in the local court to be free from harassment, both in person, over the phone, whatever. Her behavior may also constitute stalking, which, in extreme cases, may constitute a criminal violation, so you could make a complaint to your local magistrate.

My husband says he's still my husband and he has the right to have sex with me whenever he wants. Is he right?

No, but it's surprising in this day and age how many wives still assume this is true. What you are describing is called marital rape, and it is every bit as criminal as any other form of rape.

My wife is trying to turn the children against me. What can I do?

That depends on what she is saying or doing. You can counter false statements or impressions by telling the children the truth (with your presentation, of course, depending on their ages and maturity). This is a great area for the mediators, because they are very good at showing each party the tremendous damage that this sort of thing does to the children.

Is it okay if I "see" another person during my separation?

Of course - otherwise you'd bump into them!

I mean "see" another person" as is "see another person naked in bed next to me".

Oh. . . The answer to that one is, as you might imagine, very complicated. Let's consider all the possibilities:

(a) No child custody to lose, no visitation to be restricted, no marital property to lose, no marital debts to have to pay more than your share of, no need for spousal support, nothing to lose if your spouse gets vindictive and goes public with the allegations, and no chance of reconciliation: Go for it! You're untouchable! Knock yourself out! It doesn't matter whether you get involved in an adulterous affair because you've got nothing to lose if you get caught.

(b) Everybody else: If you get caught you will lose something of value to you - you may lose custody of your children, or you may have your visitation restricted. You may have to hand over more than a fair share of marital property. You may lose your right to spousal support or have to pay more spousal support than you would have liked. You may have to pay more than your fair share of the marital debts (especially if your spouse can prove that you squandered marital funds on your girlfriend or boyfriend). You may have to endure it while allegations of your extra-marital sex life are aired in public, because a divorce proceeding in Virginia is a public proceeding and you can't count on the judge imposing a gag order on the parties, so if your details are especially titillating you (and your children and friends and co-workers and boss and clients and customers and pastor) may find your picture on page 1 of the local paper.

What's the answer? Keep it zipped! Exercise a little self control! You're an adult, after all, so act like it! There, now that I've gotten that off my chest, I can get real again, because I realize that, if you've fallen in lust with someone else, nothing I or any other lawyer can say or do will stop you from doing what your hormones tell you is right.

I do have one plea - please, please: be discreet! Don't flaunt Lance (it's always "Lance" if it's a boyfriend) or Bubbles (it's always "Bubbles" if it's a girlfriend) in front of your spouse, and especially not in front of your children! Wait until I can get you divorced, or at least until after I can get your spouse to sign a separation agreement with a good non-interference clause, before you spread your wings and fly like the true social butterfly you think you are. You'll be saving yourself thousands of dollars in attorney's fees, and sparing others a lot of hurt feelings and more.

I want to move away from Northern Virginia. Is it okay if I go?

Yes, unless (a) you have been ordered by a court to stay here (which would only happen if you are on bond awaiting trial on a criminal charge, or you are on probation or parole, in which case you've accessed the wrong web site!) or (b) there are children involved. As in so many other aspects of life, children tend to complicate things.

Basically, other than "(a)" above, you have a right guaranteed by the U.S. Constitution to travel anywhere in the country you want, and no court can make you stay in one state (or one area of a state) if you want to move to another. However, if you have children and your spouse has the right to see them under the terms of a court order, then obviously that order takes precedence and you have to obey the order.

In Virginia the process is this: all court orders having to do with custody, visitation or support of children require each party to give the other party and the court (even I forget about this requirement once in awhile) at least 30 days' advance notice of any intent to change their place of residence, giving the proposed new address. That gives the other party time to see their attorney and get before a judge on an emergency motion to prevent the move, if they can convince the judge that the proposed move would interfere too much with their rights to see the children.

In my experience most judges won't stop a custodial parent from moving from Northern Virginia to, say, Richmond or Front Royal. However, going much beyond that will require a really good reason, and yes, I have seen judges tell people "You are free to leave, ma'am, but the children must stay here".

Therefore, if you are the custodial parent and are contemplating a move out of Northern Virginia, get me involved as soon as possible so that we can begin to lay the groundwork to get you what you want.

My wife just told me she's been transferred to Kentucky. Can I do anything to keep her here?

Yes. If you are the non-custodial parent and you learn, even informally, that your spouse is contemplating a move out of Northern Virginia, you should call me right away. You don't have a veto power over the proposed move, but you do have substantial rights and a judge will listen sympathetically if you complain that the proposed move will reduce your time with the children.

SECTION V - If You're Already Involved in a Divorce