5 Practical Steps to Take Upon Separation

Jenni S. Tynes authored the below article which appeared in the February 2025 issue of Stroll magazine.

5 Practical Steps to Take Upon Separation

Under Virginia law, separation occurs when at least one spouse forms the intent to permanently separate. Consider these practical steps to protect your property interests.

Divert Your Paycheck to a Separate Account

Establish a separate checking account with a zero dollar balance and designate your direct deposit to that account. Employment income earned post-separation is separate property, so you want to avoid commingling post-separation earnings with money earned during the marriage (marital money). Commingling occurs when separate money is mixed with marital money. Simply because a paycheck is deposited into a bank account owned by one party does not render the paycheck separate property, it is still marital money.

Gather Important Documentation

This step is burdensome, but important. Let’s say you contributed separate money to a down payment to purchase a home. You will want to show evidence of your down payment to preserve your separate interest, including any appreciation due to market forces. Gather all ALTA or HUD-1 statements (including those in connection with any refinances), cancelled checks, wire transfer receipts, tax returns, and account statements. Not only are these documents helpful in tracing your separate interest, but they also contain nuggets of relevant information. A competent family law attorney can glean useful information from tax returns. Ultimately, your case may require discovery tools, including the issuance of subpoenas to various financial institutions, but your initial consultation with an attorney will be the most constructive if you are able to present him or her with these documents prior to your consultation.

Take Inventory

Take inventory of all household furnishings and personal belongings, including items located in safety deposit boxes and storage units. Items tend to disappear as couples begin living separate and apart. These items may be subject to division at a trial or by a separation agreement entered into between the parties.

Do Not Date

Adultery remains a crime in Virginia. Be mindful that you are still considered married under Virginia law even upon separation. Adultery may impact spousal support, property distribution, and even child custody. Avoid dating until you consult with a competent family law attorney.

Communicate With Your Spouse

Get a pulse on his or her willingness to settle. Divorce does not have to be scorched earth. Litigation may be avoided if you and your spouse agree to terms that can be memorialized in a separation agreement.

Good communication is critical for effective coparenting if you have minor children. If your spouse does not engage in coparenting or fails to communicate well, evidencing your communication efforts may help your case if you find yourself in front of a judge at a custody trial.