Persistent intention to separate is not required

Spouses seeking a no-fault divorce under Virginia Statute § 20-91(a)(9) “are not required to prove that either party continuously, throughout the legal period, maintains the intent to separate permanently,” the Court of Appeals ruled Virginia in First impression issue.

Alternatively, the legal intent requirement under relevant law is met if either party has the intent to separate permanently at the beginning of the legal separation period.

Decision of Judge Vernida R. chaney in Laysan vs. Laysan (Flo 023-7-313) It partly upheld the lower court’s ruling finding that the wife in a no-fault divorce proceeding had fulfilled the requirements in the Act on the grounds of preliminary separation. The pair claimed that the communications showed that she “had no continuing intention to remain separated and permanently separated…which undermined the lower court’s findings.”

Chaney was joined in the 20-page opinion by Justices Clifford L. Athey Jr. and Stewart A. Raphael.


Elisabeth and Eric Lissan, referred to in the entire opinion as “the wife” and “husband” respectively, had been married for more than 20 years by 14 July 2014, when Elisabeth moved into a house she had bought in Vienna “with intent to permanently separate and divorce” Eric.

Earlier that year, Eric had told Elizabeth through his lawyer that he “believed the dissolution of the marriage to be inevitable”. The couple had previously stopped filing joint tax returns, with Elizabeth testifying that since the July 2014 separation her “continued intention to live separate and apart from her husband”.

After moving into separate residences, the couple kept in touch daily to provide care for their children, including “eating meals frequently and attending events together”.

According to the opinion, the couple “occasionally spent the night at each other’s homes” between the date of their separation in July 2014 and Christmas Eve 2018, the last night they spent together in the same house. The couple also went on trips together and visited their daughter’s college together, but they always traveled with at least one of their children.

After Elizabeth and Eric began living in separate residences, Elizabeth “sent the pair some conciliatory correspondence about their relationship” and asked Eric to move into her property in 2017. Elizabeth also attempted counseling with Eric “after July 2014”.

Eric never moved into the property and the two never reconciled.

Elizabeth filed a complaint for divorce in October 2019 “on the grounds that she has lived separately and separately from her husband since July 14, 2014.”

In a counterclaim, Eric claimed the real date of separation was December 24, 2018, the last night the couple spent together in the same house.

After a trial in August 2021, the court approved Elizabeth’s divorce claim, finding that “the parties have lived apart and apart without any cohabitation and without interruption for more than one year; they have lived separately and apart without any cohabitation and without interruption for more than one year; and they have lived separated and separated without any cohabitation and without interruption for more than one year.” To wit: since or about July 14, 2014.

First impression

Eric Laysan has filed the appeal, claiming that the court erred when it found the date of the couple’s separation to be July 14, 2014.

“The dispute over the date of separation is significant because it affects the trial court’s fair distribution and spousal support decisions,” Chaney wrote.

In his argument, Eric asserted that the wife’s “conciliatory actions and statements” showed “the abandonment of any intention of separating permanently”.

For this reason, he said, the proceedings “undermine the lower court’s decision that for the purposes of § 20-91(a)(9), the parties separated on July 14, 2014.”

Chani disagreed.

“By way of first impression, we believe that a party seeking a no-fault divorce under § 20-91(a)(9) is not required to show that either party has continuously, throughout the statutory period, maintained an intent to divorce and has shown that they are permanently separated permanent.

Chaney writes that the law is satisfied if the party has the intent to separate permanently “at the beginning of the legal period of separation.” She indicated that the process of moving into separate homes on July 14, 2014, fulfilled this element.

In making this decision, Chaney noted that the code section “does not include any explicit guidance as to the intent required to meet the legal period of separation.”

Instead, the judge looked to the Virginia Supreme Court, which decided on Hooker vs. Hooker That the separation must be “accompanied by an intention on the part of at least one of the parties to live separately and permanently separated, and it must be shown that such intention existed at the beginning of the Continuing Period (the legal period of separation).” “

Eric then said that the Court of Appeal “should extend the detention period whore To acknowledge the requirement to continuously maintain the intent to separate permanently throughout the period of separation.

Chaney rejected this argument, stating that reliance on Andrews vs. Chrissie It was “out of place”.

The judge also cited VA § 20-107.1(G), which defines a “date of separation” as “the earliest date on which the parties actually separate and at least one party intends such separation to be permanent provided the separation continues.” after that.”

Under the law, Chaney said, separation takes place “without interruption and without cohabitation,” with the precedent stating that a husband and wife can only resume cohabitation “if they resume living together as husband and wife and resume the marital partnership in respect of domestic and sanitary chores.” Financial Matters.”

“Despite the many occasions the husband and wife were together after their July 2014 date of separation, there was no reconciliation,” Chaney wrote.

The judge then rejected the argument that the couple later reconciled.

“Since the husband and wife’s communications after the date of separation – although numerous – do not show that the parties had the intention to live together as husband and wife and to resume the marital relationship after the date of separation in July 2014, we disagree with the husband,” Chaney wrote. .

As such, Chaney affirmed the part of the trial court’s ruling that found the date of the parties’ separation to be July 14, 2014, and that the court did not err in using that date to determine equitable distribution and spousal support awards.


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