Virginia Lawyers Weekly//August 30, 2023
Virginia Lawyers Weekly//August 30, 2023//
Where a party has the intent to permanently separate for purposes of a no-fault divorce, it is sufficient that the party has the intent when the statutory one-year period begins. There is no requirement that the intent be continuous throughout the statutory period.
In this no-fault divorce case, the date of separation is important because it affects equitable distribution and spousal support decisions.
“On July 14, 2014, after years of marital difficulties, wife moved into … [property she purchased] … with the intent to permanently separate from husband, and husband subsequently moved into his own apartment.
“The trial court found that ‘[t]he parties have lived separate and apart without any cohabitation and without interruption for a period in excess of one year … since on or about July 14, 2014.’” The court granted a divorce based on that finding.
“In so ruling, the trial court necessarily found that wife had the intent to permanently separate from husband at the commencement of the separation period on July 14, 2014. …
“In September 2012, wife decided to sell her Park Fairfax condominium property and to use the proceeds to purchase another home for her family’s residence – which would eliminate the expense of monthly rent for the Walden Drive rental home.
“In October 2012, wife purchased a house on Daniel Lewis Lane in Vienna, Virginia (Daniel Lewis property), but husband refused to move there, claiming it was too small. Consequently, wife rented out the Daniel Lewis property and the parties continued to reside in the Walden Drive rental home.
“At that time, husband paid no portion of the $3,000 monthly rent for the Walden Drive rental home. …
“By July 2014, wife had grown tired of financially supporting her … husband, and wife separated from husband.
“On July 14, 2014 … wife moved to the Daniel Lewis property and husband moved to a rented apartment. Wife moved to the Daniel Lewis property with the intent to permanently separate from and divorce husband. …
“Between the July 2014 separation date and December 24, 2018, the separation date alleged by husband, the parties occasionally stayed overnight at each other’s homes. Wife stayed overnight at husband’s apartment when their son was uncomfortable staying there without her.”
“Although the parties occasionally slept in the same bed after the July 2014 separation date, they did not have sexual relations. The last night husband stayed with wife at the Daniel Lewis property – and the last night they spent together – was Christmas Eve in 2018. …
“After the parties ceased residing together, wife sent husband some conciliatory correspondence about their relationship and wife sporadically wore her wedding ring. …
“After July 2014, wife attempted to get counseling with husband. In 2017, wife asked husband if he would move to the Daniel Lewis property, but husband was not interested and did not move there. The parties never reconciled.
“Husband contends that the trial court erred in finding that the parties’ separation date was July 14, 2014, the day wife moved into the Daniel Lewis property and ceased residing with husband.
“Husband argues that wife’s conciliatory actions and statements after the July 2014 separation date demonstrate wife’s abandonment of any intent to separate permanently.”
The trial court granted the parties a divorce “based on the parties having lived separate and apart, continuously and uninterrupted, without any cohabitation, for more than one year, i.e. since July 14, 2014[.]”
“As a matter of first impression, we hold that a party seeking a no?fault divorce under Code § 20-91(A)(9) is not required to show that either party continuously maintained, throughout the statutory period, an intent to separate permanently.
“The statutory intent requirement under Code § 20-91(A)(9) is satisfied when, at the commencement of the statutory separation period, a party has the intent to separate permanently.
“Additionally, given our holding that the trial court did not err in finding that the parties’ separation date was July 14, 2014, it follows that the trial court did not err in relying on the 2014 separation date when making its equitable distribution award and denying husband’s request for spousal support.”
“Code § 20-91(A)(9)(a) does not include any express guidance on the intent required to satisfy the statutory separation period. Code § 20-91(A)(9)(a) provides: ‘A divorce from the bond of matrimony may be decreed … [o]n the application of [husband or wife] if and when they have lived separate and apart without any cohabitation and without interruption for one year.’
“However, construing Code § 20-91(A)(9)(a), the Virginia Supreme Court has held that the separation must ‘be coupled with an intention on the part of at least one of the parties to live separate and apart permanently, and that this intention must be shown to have been present at the beginning of the uninterrupted [statutory separation period].’ Hooker [v. Hooker, 215 Va. 415, 417 (1975).] … (emphasis added). …
“Although, in accordance with Hooker, the husband or wife must have the intent to separate permanently to begin the statutory separation period, Hooker does not address whether that intent must be maintained continuously subsequent to the commencement of the separation period. …
“Husband contends, citing Andrews [v. Creacey, 56 Va. App. 606, 619 (2010)], that this Court has ‘strongly implied’ that the intent to separate permanently must be continuously maintained throughout the statutory separation period.
“Husband’s reliance on Andrews is misplaced. Andrews concerned the application of a part of Code § 20-91(A)(9)(a) addressing the special case of a party who loses capacity during the separation period. …
“This Court did not hold or imply in Andrews that the one-year statutory separation period is terminated by mere conciliatory efforts or statements. …
“Husband also asserts that the trial court erred in finding the separation date to be July 14, 2014, because the parties subsequently reconciled.
“Husband contends that the parties’ reconciliation is demonstrated by evidence of conciliatory efforts, family trips, and sporadic sleepovers. However, ‘[r]econciliation means more than simply cohabitation or the observance of civility; it comprehends a fresh start and genuine effort by both parties.’ …
“Because husband and wife’s contacts after the separation date – though numerous – do not show that the parties had the intent to live together as husband and wife and resume the marital relationship after the July 2014 separation date, we disagree with husband.”
Lisann v. Lisann, Record No. 0120-22-4, Aug. 8, 2023. CAV (published opinion) (Chaney) From the Circuit Court of Fairfax County. (Bernhard) Samuel Leven for appellant. Charles E. Powers, Alvin A. Lockerman Jr. for appellees. VLW 023-7-313, 20 pp.