I. Overview

The date of separation of the parties is an event of significant importance in divorce law generally. In many states, to obtain a no-fault divorce, the parties must live "separate and apart" for a specific period of time. E.g., 750 Ill. Comp. Stat. Ann. 5/401(a)(2) (Westlaw 2005) (two years); N.C. Gen. Stat.  50-6 (Westlaw 2005) (one year). The date of separation is the date on which the required time period begins to run, and it therefore determines the crucial question of when the parties can obtain a no-fault divorce.

In addition, a number of states treat the date of separation as the date of classification for purposes of property division the date on which newly earned assets (e.g., salary) stop being marital or community property, and start being separate property. Brett R. Turner, Equitable Distribution of Property  5.12 (2d ed. 1994 & Supp. 2004). Many other states use a later date, but these states are generally willing to consider making an unequal division of property acquired during separation, if the asset was not an actual product of contributions from both parties. Id.  8.05. Thus, a fight over the date of separation can offer a significant financial benefit to the prevailing side.

This article will review case law nationwide on determining the date of separation. While some of the cases deal with grounds for divorce and others deal with division of property, the context does not determine the result:

For the purpose of obtaining a divorce, separation may not be predicated upon evidence which shows that during the period the parties have held themselves out as husband and wife living together, nor when the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase.

Young v. Young, 225 N.C. 340, 344, 34 S.E.2d 154, 157 (1945). The same test for determining the date of separation is applicable under the equitable distribution statutes[.]

Hall v. Hall, 88 N.C. App. 297, 299, 363 S.E.2d 189, 191 (1987).

II. General Rule

The date of separation, logically, is the first date upon which the parties meet the requirements of a valid separation. Courts use different language to establish the requirements for a valid separation, but the requirements are broadly similar:

In addressing whether a husband and wife have lived "separate and apart," this Court has repeatedly held that these words require "both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation."

Smith v. Smith, 151 N.C. App. 130, 132-33, 564 S.E.2d 591, 592 (2002) (quoting Earles v. Earles, 29 N.C. App. 348, 349, 224 S.E.2d 284, 286 (1976)).

We believe that the words "lived separate and apart" in Code  20-91(9) mean more than mere physical separation. In our view the General Assembly intended that the separation 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 two year period of living separate and [a]part without any cohabitation. Otherwise, many extended separations required by other circumstances could ripen into "instant divorce" without the salutary period of contemplation required by the statute during which the parties have an opportunity for reconciliation.

Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975).

Physical separation alone does not satisfy the separate and apart requirement of  201(d). There must [also] be an independent intent on the part of one of the parties to dissolve the marital union before the three year period commences. This intent must be clearly manifested and communicated to the other spouse. Any other interpretation would allow one spouse to depart the marital home for apparently benign purposes, remain away for the statutory period, and then sue for a divorce.

Sinha v. Sinha, 515 Pa. 14, 18-19, 526 A.2d 765, 767 (1987). The California cases expand the notion of physical separation into a more general requirement that intent to terminate the marriage be demonstrated through objective conduct:

Simply stated, the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems.

In re Marriage of Hardin, 38 Cal. App. 4th 448, 451, 45 Cal. Rptr. 2d 308, 310 (1995).

Under the above cases, there are essentially two requirements for a valid separation. First, the parties must physically separate. Second, at least one of the spouses must intend to cease cohabitation permanently that is, to commence a final separation.

The standard of proof is a preponderance of the evidence. In re Marriage of Peters, 52 Cal. App. 4th 1487, 61 Cal. Rptr. 2d 493 (1997).

III. Physical Separation

The first element of the legal status of separation is physical separation. This element is objective: The parties must cease doing certain actions which married persons commonly do together, to the point where the law deems them to be physically separated.

The most common type of physical separation occurs when each spouse lives full-time in his or her own separate residence. See, e.g., Smith v. Smith, 151 N.C. App. 130, 564 S.E.2d 591 (2002).

Parties who live full-time in separate residences do not cease to be separated merely because they participate in certain types of joint activities together. This is particularly true of economic interaction; it is fundamentally desirable that separated parties arrange their financial affairs together, particularly when one party is financially dependent upon the other. Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992) (where parties did view marriage as ended, separation did not cease merely because parties continued to have economic interaction with each other, and wife continued to be dependent upon husband).

For the same basic reason, payment of informal support never breaks a separation, because informal support payments should be encouraged. See Teodorski v. Teodorski, 857 A.2d 194, 198-99 (Pa. Super. Ct. 2004) (husband paid voluntary support for wife and children, and parties shared some common expenses; husband "should not be denied a [finding that the parties were separated] merely because he and his wife have demonstrated a level of civility rarely seen in a divorce action") (quoting Mackey v. Mackey, 376 Pa. Super. 146, 545 A.2d 362, 365 (1988)).

Sexual relations between the parties do not automatically break a separation. See Tybus v. Holland, 989 P.2d 1281 (Alaska 1999) (where parties were otherwise separated in April of 1996, continuation of sexual relationship until October of 1996 did not change date of separation for purposes of equitable distribution); Lemoine v. Lemoine, 715 So. 2d 1244 (La. Ct. App. 1998) (parties were separated despite occasional sexual encounters); Fletcher v. Fletcher, 123 N.C. App. 744, 751, 474 S.E.2d 802, 807 (1996) (separation was not broken by "four hours on each of six evenings spent together in the former marital home eating dinner and visiting with the parties’ children in combination with three or four ’isolated acts’ of sexual intercourse"); Teodorski, 857 A.2d at 198 ("[M]ere sexual relations is insufficient to support reconciliation").

North Carolina held otherwise for a number of years, reasoning that even a single act of sexual relations destroyed a separation as a matter of law. Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978). The rule proved to be a disaster, and it was eventually overruled by statute. See N.C. Gen. Stat.  52-10.2 (Westlaw 2005). See generally Fletcher,123 N.C. App. at 751, 474 S.E.2d at 807; Sally Burnett Sharp, Divorce and the Third Party: Spousal Support, Private Agreements, and the State, 59 N.C. L. Rev. 819, 841-42 (1981). Murphy discouraged parties from attempting informal reconciliation, from fear of what might happen after those discussions. Indeed, prudent attorneys often advised clients to avoid private discussions even if the client was determined to avoid sexual relations, as false claims of sexual relations between parties who met in private were not difficult to concoct. In the years since Murphy was overruled, there have been no expressions of regret at its passing. See Fletcher, 123 N.C. App. at 751, 474 S.E.2d at 807 (refusing to "resurrect Murphy from a well-deserved demise") (quoting Higgins v. Higgins, 321 N.C. 482, 493, 364 S.E.2d 426, 433 (1988) (Whichard, J., dissenting)).

Where the parties actually resume living together for a period and interact as a normal married couple during that period, a previous separation may be broken. See Brotherton v. Brotherton, 941 P.2d 1241 (Alaska 1997) (husband left home in June, but parties lived together for two weeks in August; proper to find that date of separation was in September); Wellner v. Wellner, 699 A.2d 1278 (Pa. Super. Ct. 1997) (parties had separate homes after 1979, but spent weekends together, had sexual relations an average of one time per month, and took trips together; husband continually asked wife to return to his home, which she refused to do only because home was in poor physical condition; proper to find that parties did not separate until 1992).

When one spouse returns to the other’s residence, it is important to consider whether the parties resume interacting as a normal married couple. Joint residence alone may not necessarily break a separation, for the same reasons which lead courts to hold that persons living in the same residence can sometimes be separated. See the discussion below.

Separation "Under the Same Roof"

Another recurring issue involving physical separation is whether the parties must live in separate residences at all. Parties who desire to be separated sometimes prefer to live in the same residence, because their total housing cost is materially cheaper in one residence rather than in two. In families of modest means, the economic advantage of separation under the same roof can sometimes be considerable. In addition, situations sometimes exist in which neither spouse is willing to be the first to leave the marital residence, out of fear that leaving will give the other spouse a claim for desertion, or prejudice the spouse’s chances for obtaining a desirable custody or visitation award.

The modern rule is that parties who reside under the same roof can be separated if the right facts are present. One of the leading decisions is a Missouri case reversing a trial court decision holding that persons living under the same roof cannot ever be separated:

Our interpretation of the phrase "living separate and apart" . . . does not necessarily mean separate roofs but rather means separate lives. The fact that a husband and wife continue residence in the same abode may be evidence that they continue to live together as man and wife but it does not create a conclusive presumption to that effect. Other evidence may cause the court to come to the conclusion that even though a married couple remain in one place of abode, they are in fact "living separate and apart."

In re Marriage of Uhls, 549 S.W.2d 107, 112 (Mo. Ct. App. 1977). On the facts, the husband lived in a separate bedroom, on which he had installed a separate lock. He had only limited contact with the family:

He does not eat meals with petitioner or the rest of the family even though petitioner has generally continued to cook the meals which she and the rest of the family eat. He cleans his own bedroom and the living room where he normally sits by himself to watch television. His wife cleans the rest of the house except the boys’ rooms which are usually cleaned by them. Respondent does his own laundry in a washing machine which he purchased and which is not used by petitioner. Respondent and the other members of the family attend church separately. All conversation or other communication is avoided.

Id. at 112; see also Scott v. Scott, 155 Vt. 465, 468, 586 A.2d 1140, 1142 (1990) ("’Continued residence in the same dwelling is but one factor to be considered with others in determining the nature of the relationship between the parties’") (quoting Buxton v. Buxton, 148 Vt. 22, 25, 527 A.2d 660, 663 (1987)).

There is evidence that at least one state legislature intended that separation be possible under the same roof, if the parties otherwise acted as if they were separated:

Legislative debates surrounding the statute’s enactment clearly reveal its sponsors intended an expansive reading of the provision. State Senator William A. Marovitz declared that a court could exercise its discretion in determining whether parties exist "separate and apart":

"If the judge determines that living separate and apart they have to be living in separate households, so be it. If the judge determines that living * * * apart * * * they can be living under the same roof but there is [sic] no conjugal visits, they * * * are living in separate bedrooms, they are doing * * * their own laundry, their own meals, whatever, that’s up to the judge, and that’s * * * what the caselaw is today." (83rd Ill.Gen.Assem., Senate Proceedings, November 3, 1983, at 60).

In re Marriage of Kenik, 181 Ill. App. 3d 266, 273, 536 N.E.2d 982, 986 (1989) (ellipses by the court). On the facts, Kenik involved a fairly complete lack of contact. The evidence showed that "Dennis and Irene not only ended all marital relations a year before Dennis filed his petition for dissolution of marriage, but also that they used separate bedrooms and had ’no meaningful communication’ with each other." Id.

Some of the clearest cases are those in which the parties resided in separate and independent apartments located in the same structure. This form of separation is really no different from establishing completely different residences, except that the different residences happen to be located in the same building. For instance, a Louisiana court held that the parties were separated when they occupied separate apartments in the same building:

In the present case the house at 914 Valence Street consists of three independent apartments. Appellant, Shirley Riley, occupied the upstairs apartment, and appellee occupied a lower apartment. These apartments are each autonomous with separate kitchens and baths. There are no connecting stairways or doors between them. Access to each apartment is from separate doors on the outside of the house. The parties did not indulge in the conjugal relationship after appellee moved to the downstairs apartment. Three independent witnesses testified that they did not live together but lived in these separate apartments.

Riley v. Riley, 501 So. 2d 814, 815 (La. Ct. App. 1986).

The modern trend is not to require a complete absence of contact between parties living under the same roof, and to permit the same sort of routine interactions which unmarried persons might have when living in the same home. For example, in Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398 (2002), the parties retreated to separate bedrooms in the marital home. The wife stopped going to church with the husband, stopped depositing money into the parties’ joint checking account, and told at least one friend that the parties "were no longer ’a couple.’" 38 Va. App. at 311, 563 S.E.2d at 402. The parties stopped having a sexual relationship, and the husband began an open sexual relationship with another woman. The wife did, however, continue to buy groceries, cook, clean the home, and do both parties’ laundry. The trial court held that the parties were separated, and the appellate court affirmed:

This evidence is sufficient for a trial court to find the parties were living separate and apart without cohabitation. The parties no longer engaged in sexual intercourse. Husband openly continued a sexual relationship with another woman. Wife stopped attending functions with husband. 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.

Id. In many situations, the parties have an economic bargain that one will provide funds for joint use, and the other will perform household services. The separation is clearly not broken if the supporting spouse holds up one end of the bargain by providing support, and there is no reason why the separation should be broken when the other spouse responds by carrying out the other end of the bargain. It should be possible to maintain a separation while still behaving civilly and carrying out the duties of a long-standing economic partnership.

Of course, when parties who live under the same roof are separated, there must normally be some evidence suggesting that the parties were not living together in the same manner as normal married persons. Evidence of continuing contact, such as the cooking and laundry in Bchara, does not compel a finding that the parties were not separated, but there must still be some evidence that the parties’ relationship was fundamentally different after the alleged separation. In this light, the key facts in Bchara were the wife’s statements to third persons that the parties were separated, combined with the husband’s open continuance of a relationship with another woman. When the parties tell other persons that they have separated, and one is involved with another partner, an objective observer would probably conclude that the parties are separated, even if they continue to cooperate on basic household tasks such as cooking and cleaning.

A similar result was reached in Mackey, which also affirmed a trial court decision finding the parties to be separated:

While the parties share the common areas of the house, both have private living quarters. The parties no longer have a public social life together. Significantly, the parties stipulate that they have not engaged in sexual relations with each other since June of 1983. Thus, we find that [the] facts before us clearly manifest that the appellant lived a life separate from that of his wife . . . .

For certain, the parties have shared some common household expenses, occupied common living spaces, visited family members together and occasionally entertained mutual friends at their residence. However, Mr. Mackey should not be denied a unilateral divorce merely because he and his wife have demonstrated a level of civility rarely seen in a divorce action.

376 Pa. Super. at 153-54, 545 A.2d at 365 (emphasis added). In other words, the law should not require a lack of communication or cooperation which rises to the level of outright rudeness; parties should not be penalized for civil behavior. Indeed, Mackey suggested in a footnote that civil behavior encourages reconciliation:

Our decision also reflects the public policy of the Commonwealth as declared in Divorce Code Section 102 which states that the legislature intended to "[e]ncourage and effect reconciliation and settlement of differences between spouses." By allowing the parties now before us to reside "separate and apart" under the same roof, we have afforded them the greatest opportunity for reconciliation, while preserving the intent and effect of Divorce Code  201(d)(1).

376 Pa. Super. at 154 n.6, 545 A.2d at 365 n.6. An earlier Pennsylvania case stresses the economic justification for the rule:

[T]he gravamen of the phrase "separate and apart" becomes the existence of separate lives not separate roofs. [Citation omitted.] This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart in order to establish entitlement to support. [Citation omitted.] It additionally considers the economic hardship imposed in requiring parties to occupy separate households in order to dissolve their marriage under Section 201(d) and the realities of a marital relationship as extending beyond joint residency.

Flynn v. Flynn, 341 Pa. Super. 76, 81, 491 A.2d 156, 159 (1985).

An Illinois court held that two spouses living under the same roof were separated despite a number of unsuccessful attempts to reconcile:

Following her return home in May 1986, petitioner returned to the marital bed for about two weeks. Thereafter, until she moved out again in July 1988, petitioner slept on the couch. In fact, by respondent’s testimony, petitioner began sleeping on the couch in 1984 when the parties first moved into their house in St. Charles. By both parties’ testimony the last time petitioner expressed her love for respondent was in 1986 and the last time the couple had sexual relations was during an attempted reconciliation trip to Jamaica in August 1987. Respondent stated that this was one of many reconciliation trips.

Petitioner filed for dissolution in June 1988; it was the third time during their marriage that she had begun dissolution proceedings. By the time petitioner again moved out of the marital home in July 1988, little conversation occurred between the parties. For the most part, the parties still did take dinner together, but it was done apparently for the sake of their son, and any dinner conversation was usually directed toward the son or about the son.

. . . Although no physical separation of two years had occurred prior to the dissolution, the parties had been living "separate and apart" for more than two years. We conclude, therefore, that the trial court did not err in determining that the marriage between the parties should be dissolved under the no-fault provision of the Act.

In re Marriage of Dowd, 214 Ill. App. 3d 156, 159, 573 N.E.2d 312, 315 (1991).

The policy argument against recognizing separation under the same roof, or at least against recognizing separation under the same roof too readily, is that it allows the parties to avoid the statutory requirement that the parties be separated for a certain number of months or years before they can obtain a no-fault divorce. This argument looks too much at the narrow letter of the law, and not enough at the policy behind it. The purpose for the waiting period, clearly, is to encourage reconciliation. If the law insists that separated persons occupy different residences, then it will encourage structured, distant, and formal separations with little or no contact between the parties. Indeed, any rule of law which insists that informal contact or trial reconciliations break a period of separation will encourage distant separations. But distant separations are highly unlikely to result in an actual reconciliation of marital differences. Reconciliation is most likely if the parties are encouraged to have the maximum of contacts with each other during the separation, to increase the chance that the underlying marital problems will be addressed through measures short of divorce. A rule of law which encourages distant separations is ultimately self-defeating.

The potential for self-defeating application is to some extent inherent in the very common rule that the parties must be continuously separated throughout the waiting period. It is not unreasonable to ask that parties who desire a no-fault divorce wait for a defined period, as a way to ensure that they really desire a divorce. A waiting period is particularly reasonable where the parties have children who may be harmed as a result of the divorce.

But what is the purpose for insisting that the parties remain rigidly separated throughout the waiting period? The purpose of the waiting period is to encourage reconciliation, but reconciliation will not occur unless the parties continue to have contacts with each other. The continuous separation requirement discourages the very contacts which are most likely to lead to reconciliation, in favor of distant, formal separations which lead only to divorce. The law might better encourage reconciliation by establishing a mandatory waiting period between the initial separation and the divorce, by permitting and indeed encouraging contact, joint activity, and even short trial reconciliations during that period.

Of course, a point must come at which the parties have so clearly resumed a normal marital relationship that the waiting period must be restarted. A good example of the sort of contact which prevents parties under the same roof from being separated is Britton v. Britton, 400 Pa. Super. 43, 582 A.2d 1335 (1990), which affirmed a finding that the parties were not separated:

In the present case, the record indicates that during the three-month period in which the parties attempted reconciliation, they resumed living together and ceased to maintain separate residences. In addition, they jointly purchased a townhouse, shared the same bedroom and resumed sexual relations, shared a joint checking account, and had a social life as husband and wife. Clearly, upon these facts, one can hardly say that the parties were living "separate and apart," as defined by the Divorce Code and interpreted by the above cases.

400 Pa. Super. at 48, 582 A.2d at 1337. The joint bedroom and social life "as husband and wife" are strongly suggestive of actual (although brief) reconciliation, and not separation under the same roof.

To similar effect is a Vermont case finding that the parties were not separated under the same roof, even though they had not had marital relations for 15 years:

The court found, and the record supports, that the parties had not had marital relations for fifteen years. This finding, however, does not address whether other elements of the marriage had been abandoned. Elements such as affection, solace, comfort, companionship, society and assistance, to name a few, might well exist, defeating the contention that the parties lived apart.

. . . [T]here was not sufficient evidence to establish that the parties had lived apart for six months within the meaning of the statutory provision. Plaintiff testified that during the fifteen-year period in which she and defendant had not engaged in sexual relations, they slept in the same bed, watched T.V. together in the evenings, took walks together, and held out to others that they were husband and wife. There is nothing in the record to indicate that these activities ended before the divorce action was brought. While plaintiff complained that in the year before the separation defendant had made her life hell, would no longer take her out, and did as he pleased, this evidence was directed to the quality of the marriage.

Scott, 155 Vt. at 468-69, 586 A.2d at 1142; see also Schmidt v. Krug, 425 Pa. Super. 136, 624 A.2d 183 (1993) (where parties living in same home retained an active joint checking account and bought property together, separation did not occur until wife served husband with separation-related legal documents).

The law was traditionally reluctant to recognize separation under the same roof, and there are still scattered jurisdictions where the traditional rule may still be in force. Typical of the traditional rule is a 1964 Maryland decision:

Our research indicates that virtually all the jurisdictions in this country which have voluntary separation provisions similar to ours, and which have had occasion to interpret them, have denied divorces where the parties have lived in the same house during part or all of the critical period, even though discontinuance of sexual relations was proved.

Lillis v. Lillis, 235 Md. 490, 494, 201 A.2d 794, 796 (1964). The court was able to support this statement with a quotation from the first edition of American Jurisprudence, so the traditional rule clearly was well-accepted before no-fault divorce became common. But in light of the above citations, it is clearly not true as of 2005 that "virtually all" American jurisdictions require separation under different roofs. On the contrary, "virtually all" of the decisions to consider the issue in the past two decades have held that separation under the same roof is conceptually possible. The most recent appellate decision to follow the traditional rule appears to be Barnes v. Barnes, 276 S.C. 519, 520, 280 S.E.2d 538, 539 (1981), which relied largely upon dated authority and did not cite any of the large body of contrary case law. The modern rule is that separation under the same roof is possible in at least some cases.

For the reasons suggested above, the sharp decline in popularity of the traditional rule is sound policy. The net effect of any rule which sets a high threshold for separation is to discourage reconciliation. Separated spouses should be encouraged to have ongoing contacts with one another, because those contacts provide an important avenue through which issues can be discussed and differences can be reconciled. A point will obviously come at which the contacts between the parties are so extensive that they cannot in good faith be called separated, but that point is not reached simply because the parties reside under the same roof. Many unmarried persons reside together today without marriage; common residence is not commonly understood as an indication that the parties are husband and wife. Common residence should end a separation only when there has been a significant pattern of acting like married persons, including most importantly an express or implied representation to the community that the parties are married and not separated.

Of course, to the extent that residence under the same roof does end a separation, it does so only where both spouses consent to the joint residence. "[T]he fact that Mrs. Bishop moved back into the family home against the wishes of Mr. Bishop did not interrupt the codal requirement of living separate and apart continuously for 180 days." Bishop v. Bishop, 712 So. 2d 697, 700 (La. Ct. App. 1998).

IV. Intent To Separate Finally

The second element of the legal status of separation is intent that the separation be final that is, intent never to resume cohabitation. This element is clearly subjective; it depends upon the state of mind of one or both spouses.

Intent to separate must exist in the mind of at least one spouse. If one spouse intends a final separation and the other spouse does not, the parties are deemed separated.

In determining intent to separate, the court does not consider whether the intent to separate is justified. Separation without justification may well be desertion, but it is still separation.

Objective Conduct

Intent to separate finally is clearly an issue of state of mind. Like any state of mind, intent to separate finally can be proven with persuasive direct testimony from the spouse whose intent is at issue. Ordinarily, the court also considers circumstantial evidence evidence of actions consistent or inconsistent with the state of mind involved. Since direct testimony on state of mind is inherently biased, circumstantial evidence tends to be more important in actual practice. See In re Marriage of Hardin, 38 Cal. App. 4th at 451, 45 Cal. Rptr. 2d at 310 ("[T]he date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship") (emphasis by the court).

Communications to Others. Perhaps the most important type of circumstantial evidence is communication of the intent to separate finally to other persons. The end of a marriage is a major life event, and common experience suggests that intent to separate finally is ordinarily shared with other persons. When other persons are told of one spouse’s intent to separate finally, that intent is more likely to exist. See Hanlon v. Hanlon, 871 P.2d 229 (Alaska 1994) (trial court properly set date of separation on date when husband unequivocally communicated to wife his desire to end the marriage; he had failed to tell her of that intention for several years before that, as wife was struggling with an episode of cancer).

There is no absolute requirement that intent to separate finally be communicated to the other spouse. "Our courts have never required that the remaining party must also have knowledge of the other party’s intent to cease cohabitation." Smith,151 N.C. App. at 133, 564 S.E.2d at 593. Ordinarily, however, intent to separate finally is communicated to someone. For example, in Smith, the husband communicated his intent to his minor child and to his niece, although not to the wife.

When no one is told of one spouse’s intent to separate finally, the lack of communication is one important piece of evidence suggesting that the intent may not have existed. "’Living separate and apart’ for purposes of obtaining a final divorce means that the parties live apart in such a manner that those in the community are aware of the separation." Lemoine, 715 So. 2d at 1248. The parties are separated only where "the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase." Hall, 88 N.C. App. at 299, 363 S.E.2d at 191 (quoting Young, 225 N.C. at 344, 34 S.E.2d at 157); see also Luczkovich v. Luczkovich, 26 Va. App. 702, 713, 496 S.E.2d 157, 162 (1998) ("Although the parties physically separated in April 1991 and husband asserts that he formed the intent to terminate the marriage in the late summer of 1991, he did not evince that intent until November 1991"; trial court properly held that parties did not separate until November).

Of course, direct statements that one does not want a divorce are strong evidence that any separation which occurred is not final. See Inman v. Inman, 67 P.3d 655 (Alaska 2003) (parties physically separated in 1976, but they continued to function as an economic unit and husband told wife he did not want a divorce, until he filed for divorce in 1982; trial court did not err by using 1982 as the date of separation).

Filing of Litigation. Another common type of circumstantial evidence suggesting an intent to end the marriage is the filing of litigation against the other spouse. The obvious example is a divorce complaint, but courts have applied the rule to other types of matrimonial relief as well. See Teodorski, 857 A.2d at 198-99 (by filing proceedings to obtain protection from abuse order against husband, wife demonstrated the necessary intent to terminate the marriage).

Other Evidence. For cases relying on other circumstantial evidence of intent to separate finally, see Tybus v. Holland, 989 P.2d 1281 (Alaska 1989) (husband demonstrated intent to terminate the marriage by changing locks on the marital home so that wife could no longer enter); Benson v. Benson, 204 Md. 601, 105 A.2d 733 (1954) (draft separation agreement proposed by husband was evidence of his intent to separate; even though wife refused to sign it, draft was still proof of husband’s intent); and Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398 (2002) (wife moved the husband’s belongings into the guest bedroom after discovering his adultery, and the husband at a later point moved his belongings back into the master bedroom and moved the wife’s belongings to the guest bedroom).

Other Purposes For Separation

When the facts reveal a potential motive for separation other than ending the marriage, the presence of that motive is one factor suggesting that the parties did not intend to separate finally. "All too often the exigencies of modern life require a spouse to leave the marital home for extended periods. The demands of one’s employment, education and military service may not be utilized to secure a divorce, absent an independent intent to dissolve the marriage." Sinha, 515 Pa. at 19, 526 A.2d at 767.

The most common example is separation for reasons related to employment. In Koon v. Koon, 969 S.W.2d 828 (Mo. Ct. App. 1998), for example, the husband spent 15 months living alone in Virginia. The wife sought a divorce based upon separation, but she recognized that the husband went to Virginia only "because work was available and his wages were much greater than Husband had ever earned." Id. at 831. The husband originally intended to return after 3 months, but stayed for 15 months because of the higher wages. As soon as the wife stated her intent to file for divorce, the husband moved back to Missouri. The appellate court found that the parties were not separated. "The only reasonable inference that can be drawn from this record is that Husband’s job in Virginia was only provisional or temporary and neither party perceived himself or herself as living ’separate lives’ until March 1996." Id. Separation for the purpose of obtaining better wages is not separation for the purpose of ending the relationship.

Another example, so obvious that it is not often litigated, involves persons who serve overseas in the military. Many service members do not take their spouses with them on distant military assignments. Nevertheless, separation for the purpose of performing military duty is ordinarily not separation for the purpose of ending a marriage.

A separation for economic purposes can become a separation with intent to end a marriage at a later point in time, if one or both spouses change their intention. For example, in Gibbs v. Gibbs, 711 So. 2d 331 (La. Ct. App. 1998), the court found that the purpose of the parties’ separation had changed several months after it started, and affirmed a trial court decision granting a divorce. "Michael testified that when he originally traveled to Dallas in July 1995 he did not intend to live separate and apart from Patricia, but his intentions changed in about the third or fourth month after his move to Dallas." Id. at 332. Ordinarily, the record in these cases contains objective evidence supporting the change in intention. For example, the husband in Gibbs visited the wife only for a brief period after his intention changed, he did not have sexual relations with her, and he resided with another woman while he was living in Dallas.

Time For Determining

In determining whether intent to separate is present, the court generally looks only at the conditions which exist during the alleged separation itself. The fact that separation might end in the future, if the right facts develop, does not prevent the parties from being presently separated.

A good example is Benson v. Benson, 204 Md. 601, 105 A.2d 733 (1954). The parties in that case were married in 1944, and after the husband returned from military service, they moved in with the husband’s parents. Major difficulties quickly ensued between the wife and the husband’s mother, and the wife became unwilling to continue marital cohabitation in the same dwelling with the parents. She was willing to resume cohabitation if the husband left his mother, but the husband was not willing to do that. The trial court held that the parties were not separated, because a future reconciliation was possible. The Maryland Court of Appeals reversed:

[T]he fact that the parties in the instant case did not rule out the possibility of a reconciliation under other circumstances did not alter the finality of their common determination not to live together under the circumstances then existing, which have continued to the present time and will doubtless continue until the death of the parents. Undoubtedly one of the reasons for the three-year period prescribed by the statute is to allow time for reconsideration. It was recognized in Hahn v. Hahn, supra, that an agreement need not be formalized by a writing, and we see no reason to qualify the broad language of the statute by importing into it a requirement that a separation, by common consent of the parties, would lose its voluntary character because of the mere possibility that it may be terminated upon the happening of a condition subsequent.

204 Md. at 606-07, 105 A.2d at 735.

For essentially the same reason, intent to separate is not disproven by participation in marriage counseling. When a separated couple works with a marriage counselor, they are exploring the conditions under which it might be possible to resume the marriage. Mere exploration and discussion of those conditions is not inconsistent with an intent to be finally separated under current factual circumstances. In addition, the practical effect of a contrary holding would be to discourage separated persons from using marriage counselors, and thereby to discourage reconciliation:

[H]usband’s agreement to marriage counseling does not imply that husband and wife reconciled to such an extent as to declare that the parties are no longer living separate and apart. Doing so would go against public policy. The legislative intent of the Divorce Code is to "[e]ncourage and effect reconciliation and settlement of differences." 23 Pa.C.S.A.  3102(a)(2). See also Mackey, 545 A.2d at 365 n. 6.

Teodorski, 857 A.2d at 199.

The holding of Teodorski has been codified in Illinois:

At any time after the parties cease to cohabit, the following periods shall be included in the period of separation:

(A) any period of cohabitation during which the parties attempted in good faith to reconcile and participated in marriage counseling under the guidance of any of the following: a psychiatrist, a clinical psychologist, a clinical social worker, a marriage and family therapist, a person authorized to provide counseling in accordance with the prescriptions of any religious denomination, or a person regularly engaged in providing family or marriage counseling; and

(B) any period of cohabitation under written agreement of the parties to attempt to reconcile.

750 Ill. Comp. Stat. Ann. 5/401(a)(2). The Illinois statute is an interesting and innovative response to the above-noted fact that strict separation requirements encourage distant separations, and therefore discourage reconciliation. By expressly including good-faith reconciliation attempts within the definition of "separation," Illinois has ensured that the separation requirement will not in practice discourage reconciliation.

V. Voluntary Separation

A few states distinguish between voluntary and involuntary separation. Maryland, for example, allows divorce for a voluntary separation of 12 months, or an involuntary separation of 24 years. See Md. Code Ann., Fam. Law  7-103(a)(3), (5) (Westlaw 2005).

A voluntary separation requires physical separation, plus mutual intent of both spouses not to resume marital cohabitation. "[A] voluntary separation must be accompanied by a mutual intent to terminate the marriage; mutuality of intent is a component of voluntariness." Aronson v. Aronson, 115 Md. App. 78, 97-98, 691 A.2d 785, 795 (1997). If voluntary separation is the only no-fault ground, then a spouse who is innocent of fault can prevent the other spouse from ever obtaining a divorce, simply by not intending to terminate the marriage. Maryland therefore allows divorce for involuntary separation as well but requires a longer waiting period, presumably on the basis that the law should be slower to terminate a marriage which one spouse still wishes to maintain. "[W]hen one party to the divorce is not willing voluntarily to terminate the marriage relationship, the two year separation ground precludes ’a party from perpetually preventing his or her spouse from obtaining a decree of divorce a vinculo matrimonii.’" Id. (citing Flanagan v. Flanagan, 14 Md. App. 648, 654, 288 A.2d 225, 230 (1972)).

The same end result obtains in Illinois, which allows divorce for a separation of two years, but allows the waiting period to be waived at any point after six months, if both parties consent to the waiver. 750 Ill. Comp. Stat. Ann. 5/401(a)(2). The mutual waiver permitted by Illinois law fulfills the same purpose as the shorter waiting period for a divorce based upon voluntary separation under Maryland law.

VI. Conclusion

Living separate and apart for a stated period is of course only one of the two most common potential grounds for obtaining a no-fault divorce. A number of states reject entirely the concept of living separate and apart as a ground for divorce, and instead simply permit a marriage to be terminated for irreconcilable differences. E.g., Fla. Stat. Ann.  61.052(1)(a) (Westlaw 2005) ("irretrievably broken").

The major perceived advantage of the "separation model" of no-fault divorce is that the waiting period encourages reconciliation. The major perceived disadvantage is that parties who do not reconcile must wait longer to obtain an actual divorce. This disadvantage is particularly troublesome when one of the parties has engaged in misconduct which is not an actual ground for divorce, but which would still convince a reasonable person that reconciliation is not desirable. Even cases involving spousal abuse or adultery can fall into this category, because the cost of proving these forms of misconduct can be too expensive for parties of limited means. A contested issue of fault can also greatly increase the emotional trauma of divorce for both the innocent spouse and the children. Conversely, cases do exist in which the parties reconciled during the waiting period under the separation model. These reconciliations are of obvious benefit to the spouses, their children, and the courts.

Accordingly, when weighing the respective merits of the separation and the irreconcilable-differences models of no-fault divorce, the critical fact is the number of situations in which the waiting period actually fostered a reconciliation between the parties. The question cannot be answered from court statistics alone, as the entire point of the waiting period is of course to encourage reconciliation before an action is filed. If the number of actual reconciliations created by the waiting period reaches a certain level, then it justifies the inconvenience and even the outright harm caused by the waiting period. Conversely, if the waiting period is not causing real spouses to engage in actual reconciliations with much frequency, then it does not seem to provide a public benefit sufficient to overcome its tendency to delay divorce in those situations in which divorce is clearly desirable, including especially those in which the innocent spouse is unable to bear the financial and emotional burden of litigating fault.

In the absence of reliable studies on the extent to which the waiting period actually encourages reconciliation, it is not possible to objectively conclude that either of the two main models of no-fault divorce is preferable to the other. Nevertheless, it is highly desirable that states following the separation model take reasonable steps to maximize the number of reconciliations attributable to the waiting period. Such steps increase the benefit of the separation model and therefore directly justify the legislature’s decision to adopt that model. Indeed, one might even argue that measures to encourage reconciliation during the waiting period are implicitly required by the very adoption of the separation model, as that model is good policy only to the extent that the waiting period produces actual reconciliations.

Because the effectiveness of the waiting period is so critical to the argument for implementing no-fault divorce by means of the separation model, it is especially important that states encourage spouses to act during the waiting period in a manner which facilitates reconciliation. When legislatures and courts require that married persons avoid all contact with each other during separation, they discourage contacts which are likely to lead to reconciliation, and therefore strike directly at the heart of the policy justification behind the separation model. A rigid definition of "separation" turns the waiting period into a pointless formality, and thus strengthens the argument for the irreconcilable-differences model. Conversely, when legislatures and courts allow the parties to meet informally, discuss possible future reconciliation, have occasional sexual relations, and even reside together under the same roof, the parties are encouraged to undertake these activities and all of them, by their very nature, encourage reconciliation. This powerful policy advantage is why the modern decisions have moved so sharply toward a more flexible definition of "separation."

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