Recently Smith Strong managing partner Van Smith was faced with a unique predicament.  A devout Muslim woman came into the office and shared that her husband had left her and their minor children.  Her strong religious views meant that she would not consider a divorce, but she had no income and was worried there were no other options.  Luckily for her, and others in the same situation, in Virginia spouses have the option to file for “separate maintenance.” 


            Separate maintenance is a way for one spouse to receive Court ordered support from the other spouse, without a divorce.  The concept is derived from the colonial time period when obtaining a divorce was significantly more difficult.  Separate maintenance is less common these days, but is still useful in cases where a person’s religion forbids divorce, or where there are certain financial considerations that make a divorce less desirable. 

Separate Maintenance

            The general rule is that for a spouse to receive separate maintenance: (1) the other spouse must be at fault; (2) the spouse receiving support must not be at fault; (3) the parties are living separate; and (4) the parties are married. 


            With respect to the fault aspect, it must be shown that the spouse paying support deserted the marriage, was cruel, or otherwise acted in a manner that amounts to “constructive desertion.”  Desertion means the spouse abandons the marriage, with no intent of returning.  Usually this is when a person leaves the marital home and stops supporting their spouse.  In contrast, if husband and wife both agree to separate that would not amount to desertion.  Cruelty in this context usually requires bodily harm, or the imminent threat of it.  Mental cruelty will usually be insufficient, however if the persistent mistreatment of a spouse makes the marriage unendurable that would be classified as constructive desertion.  Any showing of fault on these grounds will be enough, but remember that the spouse receiving support cannot also be at fault.  If both parties are at fault, generally separate maintenance will not be awarded.


            The final two requirements, that the parties are living separate and are married, are more straightforward.  Living separately usually means that both spouses each have their own separate residence.  However, courts have found that spouses in the same house are “living separate and apart” in cases where they no longer act in their roles as husband and wife.  Of course this is more difficult to demonstrate to the court, but it can be done.  For example, one court found that a married couple living in the same house was nonetheless living separately after it heard testimony that there was an extended absence of sexual intercourse in the marriage, in that case over five years.  The final requirement is that the parties must be married.  The whole point of separate maintenance is to award support in situations where the parties are still married; so it makes sense that it is not a remedy for a couple that is divorced. 


            One consideration to note is that a separate maintenance action will only award support, it does not allow the court to settle rights to property.  In other words, a separate maintenance action will provide you with a monthly payment for support, but it will not give you the right to a house or vehicle.  In situations where the property rights of spouses need to be determined a more appropriate action would be a divorce a mensa et thoro, also known as a divorce from bed and board, or a limited divorce.  Virginia has two forms of divorce, absolute and from bed and board.  People are more familiar with absolute divorce, which completely dissolves the marriage.  A divorce from bed and board can be thought of as a partial divorce because it is only an economic divorce and it does not sever the bonds of matrimony.  That means all of the property rights of the parties can be assigned, just as in an absolute divorce, but the parties are only legally separated and would not be able to remarry.  The downsides of a divorce from bed and board are that it still requires fault-based grounds, discussed above, and after one year either party can petition the court to merge it into an absolute divorce.  Therefore, if both parties are not on the same page it could result in an absolute divorce, exactly what one spouse may be trying to avoid. 


            As you can see there are options for people that for one reason or another cannot divorce, but still need a Court to grant support or settle property rights.  While the requirements for such an action may seem complex an experienced attorney at Smith Strong, PLC can walk you through the available options and guide you on the path best suited for your situation.  Do not let an objection to divorce stand in your way if there is trouble in your marriage because we can assist you.  Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg).




Separate Maintenance: Is it Extinct? by Sarah L. Payne and Julie Curran Gerock

When is Separate Maintenance Applicable? by Ronald R. Tweel and Elizabeth P. Coughter