Insufficient assertion of intent to separate dooms divorce complaint

A trial court granted a husband’s demurrer where his wife’s complaint for divorce did not expressly plead her intention to permanently separate on the date of their physical separation and the parties’ postnuptial agreement contradicted such an intent.

Finding no case law on point, Judge David
A. Oblon of the Fairfax Circuit Court found support in opinions about desertion-
based divorces that a “party seeking divorce based on living separate and apart must expressly or inferentially plead an intent to do so permanently.”

“The intent must commence at the time of the separation and predominate during the statutory period,” the judge wrote.

Because the wife failed to plead her intent and the postnuptial agreement attached to her complaint tended to negate her intent to permanently separate, Oblon granted the husband’s demurrer in Fairfax v. Fairfax (VLW 026-8-002).

Highlight on intent

Divorce attorney Julie Cillo, a partner with Owen & Owens in Midlothian, said this case highlighted the emphasis and focus placed on a party’s intent, as well as the application — and extension — of the
Supreme Court of Virginia’s ruling in
Lisann v Lisann.

“This line of cases necessitates that an attorney carefully consider all factual circumstances, including written documents, verbal communications and behavior that occurs between parties from the physical date of separation to the filing of the divorce action, to ascertain intent,” Cillo said.

The wife’s attorney did not respond to a request for comment before press time, while the husband is pro se.

Divorce complaint

Cerina Fairfax filed her complaint for divorce from Justin Fairfax on July 18, 2025. She pleaded that the parties separated on June 1, 2024, while residing under the same roof and entered into a postnuptial agreement (PNA) on Dec. 14, 2024.

According to the complaint, the wife’s counsel issued a notice of her intent to terminate the marriage to her husband on June 2, 2025.

The PNA stated that “resolution of some issues . . . will reduce the stress on their marriage . . . regardless of if the marriage flourishes or flounders.”

The parties also agreed in the PNA that “[w]hile it is their hope that their marriage will be long and happy, [the parties] desire at this time to anticipate and plan now for contingencies in order to preserve their marriage at this time as well as in the future.”

Additionally, the PNA defined “separation” and described it as a future event that triggers various rights between the parties. The husband demurred to wife’s complaint.

Conceptually similar

A party seeking a divorce by separation pursuant to Va. Code § 20-91(A)(9) not only must have lived separate and apart for one uninterrupted year before filing a complaint, they also must prove an intent to permanently live separate and apart from their spouse.

Here, the husband argued that the complaint failed to plead his wife’s intent to permanently separate from him on their date of separation. The wife responded that her complaint was sufficient; she could prove intent at trial.

Both parties agreed there was no direct authority on point to resolve the issue. Also finding no cases on point, Oblon first reviewed dicta from the Supreme Court of Virginia’s opinion in Lisann v. Lisann that approved of a litigant’s assertion of intent in their complaint.

“In Lisann, the plaintiff pleaded ‘[a]t least one of the parties intended to live separate and apart for at least one year and that their intent has remained constant for at least a year,’” the judge said. “This suggests asserting intent in a complaint is a good idea. It does not mandate this, though.”

The Court of Appeals of Virginia addressed pleading requirements for desertion-based divorce cases in a pair of unpublished opinions: Williams v. Williams and Hill v. Thomas.

“Just as with divorces based on living separate and apart, divorces based on desertion have an intent element — the intent to desert,” Oblon explained.

The Williams court affirmed a trial court for sustaining a demurrer because the wife failed to plead facts supporting an intent to desert a marriage. Later in Hill, the court found additional facts asserted by the husband mitigated his failure to expressly plead his wife’s intent to desert.

“Implicit in the opinion is that a party must plead intent either directly or, in that case, inferentially,” Oblon said. “Both opinions relied on the principle that one must plead intent. The Court cannot think of a principled reason why one must plead intent in a desertion-based case but not in a conceptually similar separation-based case.”

Contradictory assertion

Based on the wife’s pleadings that the parties separated on June 1, 2024, and she issued her intent to terminate the marriage a year later, Oblon could not infer her intent to permanently separate from her husband one year before filing suit.

Further, the husband asserted that the PNA contradicted his wife’s assertion that they separated on June 1, 2024, as a matter of law.

“Because the complaint is silent on Wife’s intent to permanently separate, and the parties’ PNA is filled with positive statements regarding the then-current state of the marriage, the Court agrees,” Oblon wrote.

The PNA — executed halfway through the parties’ year-long separation — contained many positive statements regarding the then-current state of the marriage,
Oblon said.

“They intended the PNA to ‘reduce the stress on their marriage … regardless of or if the marriage flourishes or flounders,’” the judge noted. “They were dividing assets ‘in the event of divorce or separation.’”

“In context, separation was a prospective event, not a then-existing state,” the judge observed, adding that it was possible the wife intended to permanently separate but later considered reconciliation.

“In Lisann, the Supreme Court wrote that ‘[u]nsuccessful attempts at reconciliation … are not the same as reconciliation … [n]or are they necessarily disavowals of an intent to permanently separate,’” Oblon said.

But here, the judge advised that courts “must look at the predominating intent during the statutory period of separation, not episodic or transitory expressions of doubt or indecision.”

Thus, the wife could have intended to permanently separate but later attempted reconciliation and thereafter reverted to her permanent intent to separate.

“This unsuccessful attempt at reconciliation would not negate the prior separation period so long as her intent to live separate and apart predominated during the statutory period,” Oblon wrote.

But because the wife did not plead that in her complaint, and the facts she pleaded did not support an inference of her intent, Oblon sustained the husband’s demurrer.

While this case examined the absence of pleading intent, Owens & Owens’ Cillo anticipated that future litigation may rest heavily on whether a party’s expressly stated intent was sufficient under current case law.

“For example,” she explained, “what is considered unsuccessful versus successful attempts at reconciliation, episodic or transitory expressions of doubt or indecision, and disavowals of an intent to permanently separate, and do we have sufficient evidence to meet our burden of proof on those elements?”