We're Separating. What Should Our Separation Agreement Cover?

Is There Legal Separation in Virginia?

Not as a court-issued status. Virginia has no "legal separation" filing that makes you officially separated. Here, separation is a fact: you and your spouse live separate and apart, and at least one of you intends the separation to be permanent.

When people talk about a legal separation in Virginia, they usually mean one of three things:

• A separation agreement. A signed contract that settles property, debts, support and the children while you stay married. This is the most common route.
• Separate maintenance. A claim in Circuit Court for spousal support without ending the marriage (§§ 20-96, 20-107.1). The court can also decide custody and child support (§ 20-107.2).
• Divorce from bed and board. A limited divorce. The court can order the spouses "perpetually separated" and decide support and the children, but neither spouse may remarry while the other is alive (§ 20-116).

A 2026 Change to Divorce From Bed and Board

Until July 1, 2026, a divorce from bed and board required a fault ground, such as cruelty or desertion. Now § 20-95 also allows one "upon the parties living separate and apart with the intent of at least one of the parties to remain separate and apart permanently." No waiting period applies to filing. The statute adds that such a divorce "may be decreed only in accordance with the provisions of § 20-91." Because this language is new, how courts apply it is still developing.

A bed and board decree does not divide marital property. Virginia courts do that only when the marriage ends, usually in a final divorce called a divorce from the bond of matrimony (§ 20-107.3). Once the required time has passed, either spouse can ask the court to turn the case into a final divorce (§§ 20-121, 20-121.02).

When Does the Separation Clock Start?

For spousal support, Virginia defines the date of separation as "the earliest date at which the parties are physically separated and at least one party intends such separation to be permanent," as long as the separation continues (§ 20-107.1(G)). A no-fault divorce rests on the same two elements: living apart and intent.

In 2025, the Supreme Court of Virginia clarified the intent part in Lisann v. Lisann. The intent to separate permanently must exist at the start and "must predominate throughout the statutory period." Intent on the first day alone is not enough. The Court added that brief doubts, mixed signals and unsuccessful attempts to reconcile do not necessarily defeat that intent. An actual reconciliation is different.

Why the Date Matters

The separation date does more than start the divorce clock:

• Property acquired during the marriage and before the last separation is presumed marital, including the part of retirement plans earned in that time (§ 20-107.3).
• Debt one spouse takes on after the separation is generally that spouse's separate debt, and debts are measured as of the separation date (§ 20-107.3(A)).
• If the right to spousal support is reserved, the reservation is presumed to last half the time from the wedding to the separation (§ 20-107.1(D)).

In Lisann, the two dates the spouses proposed were more than four years apart, and the choice affected both property division and spousal support.

Proving the Date

Virginia no longer requires a corroborating witness for a no-fault divorce (§ 20-99). In an agreed case, a spouse swears in an affidavit that the separation was continuous and "with the intent to remain separate and apart permanently" (§ 20-106(B)(5)).

When the date is disputed, the judge decides it from the evidence. People commonly keep records such as a new lease, separate bank accounts, and messages about the decision. Many agreements also state the date of separation, which leaves less room for a later dispute.

Separating Under the Same Roof

Virginia courts have accepted that spouses can live "separate and apart" in one house, but the facts must show it. The Court of Appeals calls the question "a fact-based inquiry, requiring examination of all the circumstances."

In Bchara v. Bchara (2002), a Fairfax case, the court upheld a separation date for spouses who stayed in the same house. The evidence showed that:

• They slept in separate bedrooms and had no sexual relationship.
• The wife stopped going to family functions and church with her husband.
• She stopped depositing money into their joint account.
• A friend who visited every week saw them living separately.

The wife still cooked, cleaned and did laundry, which the court said did not by itself mean they were living together. Every case turns on its own facts, so an in-home separation is something our team can review with you.

How a Signed Agreement Affects the Waiting Period

For a no-fault divorce, Virginia generally requires one year of separation. The period drops to six months when the spouses "have entered into a separation agreement" and have no minor children together (§ 20-91(A)(9)(a)). The six months count from the start of the separation, not from the day you sign. The sample six-month complaint in Fairfax's pro se divorce package assumes the agreement was signed before filing.

With minor children, the one-year period applies even with a signed agreement. Our uncontested divorce guide explains the filing steps, fees and timing in Fairfax Circuit Court.

What a Separation Agreement Usually Covers

A separation agreement, often called a property settlement agreement, is a written contract between spouses. Virginia treats it as a marital agreement under § 20-155. A thorough agreement usually addresses:

• The home: who stays, whether it is sold or refinanced and by when, and who pays the mortgage until then.
• Other property: bank and investment accounts, vehicles, any business, and household items.
• Debts: who pays each loan and credit card. The agreement binds the two of you, but a lender that did not sign it may still treat a joint account as owed by both. Agreements often set deadlines to refinance or close joint accounts.
• Retirement accounts and pensions: how the marital share is divided. Many plans need a separate court order to carry out the division, called a qualified domestic relations order (§ 20-107.3(K)).
• Spousal support: whether either spouse pays, how much, for how long, whether it can change, and what ends it. Our spousal support guide explains how courts decide it.
• Custody and visitation: legal and physical custody, the parenting schedule, holidays, and how decisions get made.
• Child support: the guideline amount (§ 20-108.2), health insurance, uncovered medical costs and child care. Parents can also agree to support past the age the law requires, such as help with college, and the court may confirm it (§ 20-124.2(C)).
• Health and life insurance: who covers whom now and after a divorce, and any life insurance that secures support (§ 20-107.1:1).
• Taxes: how you will file while still married, and who claims the children. For agreements signed after 2018, federal law treats spousal support as neither deductible for the payer nor income for the recipient.
• The separation itself: the date of separation, and whether the agreement survives a reconciliation.
• Practical terms: restoring a former name, attorney's fees, full financial disclosure, and how future disagreements will be handled.

If one spouse sponsored the other for a green card, the sponsor signed an affidavit of support (Form I-864). Divorce is not one of the events that ends that federal support duty (8 CFR 213a.2(e)). Because our firm also practices immigration law, we can look at how an agreement fits with that obligation.

Which Terms Can Change Later

Signing an agreement doesn't make every term permanent. Virginia law treats each part differently.

Term	Can a court change it later?
Custody and visitation	Yes. The court can revise them as the parents' circumstances and the children's benefit require (§ 20-108).
Child support	Yes, on a petition. A change generally reaches back only to the date the other parent got notice of the petition (§ 20-108).
Spousal support	It depends on the agreement's wording (§ 20-109).
Property and debts	Usually not. The Code has no process for revising an agreed division because circumstances change.

Spousal Support Terms

If a signed agreement is filed before the final decree, the court can award spousal support only as the agreement provides (§ 20-109(C)). For agreements signed on or after July 1, 2018, a later request to change support based on a material change in circumstances can't be denied just because of the agreement. The exception is an agreement that "expressly states that the amount or duration of spousal support is non-modifiable."

Unless the agreement says otherwise, support ends when either spouse dies or the recipient remarries (§ 20-109(D)). Cohabiting for a year or more in a relationship like a marriage can also end it, subject to the agreement's terms (§ 20-109(A)).

Incorporation Into the Divorce Decree

When the divorce is granted, the court can "affirm, ratify and incorporate" the agreement into the decree. It then becomes "a term of the decree" and can be enforced like any other part of it (§ 20-109.1). An agreement that is not incorporated stays a contract between the spouses.

What Makes a Separation Agreement Enforceable

A marital agreement must be in writing and signed by both spouses, and it takes effect as soon as it is signed (§§ 20-149, 20-155). There are two narrow exceptions: terms in a court order endorsed by counsel or the parties, and terms recorded by a court reporter and affirmed by both spouses on the record. Having the signatures notarized is standard practice, and the Virginia State Bar's divorce guide describes enforceable agreements that way.

A court can refuse to enforce an agreement if the spouse challenging it proves either:

• they did not sign it voluntarily, or
• it was unconscionable when signed, and they neither received fair disclosure of the other spouse's property and debts nor waived that disclosure in writing (§ 20-151).

Any change to a signed agreement must be in writing and signed by both spouses (§ 20-153). If you reconcile after signing, the agreement is canceled unless it expressly says otherwise (§ 20-155).

If Your Spouse Won't Sign

No one can be made to sign a separation agreement. Without one, the one-year separation period applies to a no-fault divorce, with or without children. A refusal does not prevent a divorce. After the year, either spouse can file, and the court decides whatever the two of you can't settle, including property, support and custody.

Before then, temporary help may be available:

• Spousal support: a spouse can ask the Juvenile and Domestic Relations District Court for support after separating, even with no divorce filed (§ 16.1-241(L)).
• Custody, visitation and child support: that court can decide these too. Our custody guide explains the process.
• Temporary orders: while a divorce, separate maintenance or J&DR support case is pending, the court can order support, health coverage, payment of debts, and exclusive use of the home (§ 20-103).

A case that starts contested can still end with a signed agreement. Our contested divorce guide explains what happens when a spouse won't agree.

Templates and Online Forms

Separation agreement templates are easy to find online, some for free. Some are written for many states at once, and some use "legal separation" terms that don't match Virginia law. A generic form may not address:

• Virginia's rules on changing spousal support, including the "non-modifiable" wording in § 20-109(C).
• What happens to the agreement if you reconcile (§ 20-155).
• The separate order many retirement plans require.
• Child support checked against Virginia's guidelines, with the findings the court needs for a different amount (§ 20-108.1).
• Deadlines to refinance, transfer titles, and remove a spouse from joint debts.

A template can help you think through the issues. Because the agreement takes effect the moment both spouses sign, some people have a lawyer review a template-based draft first.

How First Point Can Help

First Point Law Group has served individuals and families from Fairfax since 2004. Our family law team helps clients in Fairfax and Northern Virginia prepare, review and negotiate separation agreements. When spouses can't agree, we also handle spousal support, custody and contested divorce cases. One lawyer can't represent both spouses, so the other spouse may have their own lawyer review the agreement.

Bring these to a consultation:

• Your date of marriage, the date you separated or plan to, and how you are living now.
• Any draft agreement or template, and messages about proposed terms.
• Recent statements for bank, investment and retirement accounts, loans and credit cards.
• Recent pay stubs and tax returns for both spouses, if you have them.
• Your children's names, birth dates and current schedule, and any court orders.
• Any prenuptial or postnuptial agreement.
• Immigration documents, if either spouse's status is tied to the marriage.