Articles of Interest
The “Not So Separate” Separation: The
Pitfalls of Living Separate and Apart in the Same Residence
By: Richard E. Garriott,
K. Lynn Preston Fox, Esquire
Clarke, Dolph, Rapaport, Hull, Brunick, & Garriott,
Published in The Family Law News
By the Family Law Section of the Virginia State Bar
|“Do you know
what it means to come home at night to a woman who’ll
give you a little love, a little affection, a little tenderness?
It means you’re in the wrong house, that’s what
– Henny Youngman
Although Va. Code S20-91 (A)(9)(a) states
specific grounds for divorce, the code does not consider today’s
economic challenges facing many couples who wish to separate
and divorce. Many such couples, quite simply, cannot afford
to set up two households while awaiting the a divorce. In
today’s economic climate, many divorcing couples try
to remain in the same residence while “not cohabitating.”
To achieve a no-fault divorce, the statute requires that the
husband and wife live separate and apart without any cohabitation
and without interruption for one year or, if the parties have
no minor children and have entered into a separation agreement,
a divorce may be decreed on application if and when the husband
and wife have lived separately and apart without cohabitation
and without interruption for six months. Moreover, the separation
period must be coupled with an intention of at least one of
the parties at the time of separation, and continually ever
since, to live separate and apart permanently. Hooker v. Hooker,
215 Va. 415, 417, 211 S.E. 2d 34 (1975)
While it may seem simple and financially advantageous to stay
in the same residence, the decision to do so presents risks.
The statute requires that proper evidence of separation must
be presented to the court and be corroborated, and that evidence
may be difficult to bring before the judge in such a situation.
Once a judge hears the case, the couple may be ordered to
live in separate residences for an additional year, resulting
in extra litigation and household expenses, thus negating
the savings from the previous year’s arrangement. Of
course, one cannot ignore the risk of confusing minor children
living in the home with two parents who no longer act married.
Case law related to divorce has generally supported the underlying
assumption that cohabitation is a central tenet of marriage.
As early as 1919, the court ruled that “the presumption
of marriage from cohabitation apparently matrimonial is one
of the strongest presumptions known to the law.” Reynolds
v. Reynolds, 125 Va. 295, 307 (1919). Further, the Virginia
Supreme Court has defined “cohabit” as meaning
“to live together in the same house as married persons
live together, or in the manner of husband and wife.”
Johnson v. Commonwealth, 152 Va. 965, 970, 146 S.E. 289 (1929).
The Court of Appeals has stated that “the essential
elements of ‘cohabitation’ are (1) sharing of
familial or financial responsibilities and (2) consortium.”
Factors that may establish shared familial or financial responsibilities
“include provisions for shelter, food, clothing, utilities,
and/or commingled assets.” In addition, features of
consortium include “mutual respect, fidelity, affection,
society, cooperation, solace, comfort, aid of each other,
friendship, and conjugal relations.” Rickman v. Commonwealth,
33 Va. App. 550, 557, 535 S.E. 2d 187 (2000). In Bchara v.
Bchara, the court stated that determining whether and when
the parties have lived separate and apart without cohabitation
is a fact based inquiry that requires examining all of the
circumstances before the court. Bchara v. Bchara, 38 Va. App.
302, 310, 563, S.E. 2d 398 (2002).
The appellate court made no decisions on whether it was possible
to obtain a divorce on the grounds of living separate and
apart while the parties lived under the same roof until 2002,
and the circuit court decisions were split on the issue. For
example, the judge granted a divorce in Doggett because the
court recognized that financial hardship had prevented either
party from moving out. Although the couple continued to occupy
the same home, they did not spend time together or sleep in
the same room. Doggett v. Doggett, 5 Va. Cir. 349, 1986 WL
401751 (1986). However, in another decision the court held
that a husband and wife could not live separate and apart
while in the same residence. Yane v. Yane, 8 Va. Cir. 336
At times, even the parties seeking a divorce do not agree
on whether they continued to cohabit or were living separate
and apart. In Bean v. Bean, 2000 Va. Cir. LEXIS 143 (2000),
the wife contended that the parties separated when the husband
left the former marital residence, while the husband argued
that they lived separate and apart while he remained in the
home. The court found the testimony of the husband and his
witness insufficient to prove his position, and in fact ruled
that substantial evidence existed of shared marital responsibilities
In Bchara, the Court of Appeals looked for evidence of the
wife’s intent to establish a separate relationship and
discontinue the relationship, even though she remained in
the marital home. The court ruled that the wife had fulfilled
the divorce statute by providing corroborated evidence of
her intent. As evidence, she provided testimony that the couple
did not have sex, attend social functions or church together,
or live in the same room; she had also stopped depositing
inheritance money into their joint account. Further, a friend
testified that the wife moved her husband’s clothes
into the guest room after finding a tape of the husband having
sex with another woman; the friend also visited the home regularly
and observed them living separate and apart. Although the
husband maintained the relationship with the other woman,
he opposed entry of the divorce. He tried to move his clothing
back into the master bedroom and remove his wife’s items
and presented evidence that she had shopped and cooked for
him. The court ruled that “continuing to share food
and keep a clean house are not behaviors that, as a matter
of law, require a finding that the parties were living together.”
[Emphasis added.] Bchara v. Bchara, 38 Va. App. 302, 310,
563, S.E. 2d 398 (2002) See Chandler v. Chandler, 132, Va.
418, 112 S.E. 856 (1922).
Yet in Catalano v. Catalano, a circuit court found that the
husband’s intent to end the marriage was not sufficient
to grant a divorce, as the couple did not physically separate.
“Although the parties slept in separate bedrooms, they
did not live separately and apart, without cohabitation, while
they remained under one roof.” The parties continued
to hold themselves out as a couple, attending events and sharing
meals. In addition, the husband supported the family financially,
and the wife cleaned the house. As a result, the court determined
that “the parties continued to live together and carry
out the mutual responsibilities of a marital relationship.”
Catalano v. Catalano, 19 Cir. 2004191537, 68 Va. Cir. 80 (Fairfax
What recommendations does an attorney give a client who is
considering remaining in the home while seeking a divorce?
The guidelines that follow may help avoid a court ruling against
a client seeking a divorce. One spouse should deliver a formal
letter to the other stating the intention to live separate
and apart as of a certain date. In establishing separate households
to the extent possible, advise clients not to engage in the
following activities: sexual relations, sharing food and a
room, shopping or cooking for each other, cleaning up or doing
another’s laundry, or even giving gifts to one’s
spouse. Financially, clients should establish separate bank
accounts and close joint bank accounts.
Spouses should separate and secure computers and phones.
Since the court requires corroboration of a client’s
evidence, parties should let others know they are separated.
They should not attend social or family functions together.
They should have at least independent witness, such as a friend
or family member who visits frequently, testify as to their
living separate and apart. Lastly, attorneys should remind
clients to be prepared to explain the reasons for living separately
in the same residence.
Spouses seeking a divorce while staying in the same house
face challenges in establishing the standard of living separate
and apart without cohabitation. Ironically, most attempts
to live separate and apart under the same roof require more
planning and cooperation between the spouses than would have
occurred prior to separation. The couple must agree on a division
of costs, duties, and living arrangements far more detailed
than practiced during the marriage. Case law demonstrates
that the courts expect a thorough demonstration of evidence
that the couple, although in the marital home, no longer hold
themselves to be married. By adhering to the lifestyle of
separated couples, it is possible, subject to the tender discretion
of the courts, to traverse the minefield of blending economic
hardship with the requirements of the law.