Separated Couples Sharing the Same Residence

Bob and Carol have been married for 10 years and have an eight-year-old son. Shortly after their marriage, they bought a house for $400,000 and now have a mortgage with a balance of $390,000. It's a nice, three-level house including a family room with a bathroom on the lower level. They are current on all payments due on the mortgage. However, because of the downturn in the real estate market, the house currently would appraise for approximately $350,000.

Over the past couple of years, the couple's relationship has deteriorated and now they have decided to separate. The problem is, with the devaluation of the real estate market, it would be difficult to sell their house right now, and even if they could, the costs of sale and the low appraisal value would mean that the house would sell for less than the balance on the mortgage.

Although they both work, neither can afford to move out of the marital home and move into another residence. They cannot live with each other any longer, but they cannot afford to live apart. Some states require that a couple live “separate and apart” for a specified period of time before they can file for divorce. If they cannot sell the house, and one of them cannot afford to move out of the marital home, what can they do?

Separated But Under the Same Roof

The downturn in the housing market has made it more difficult for many separated couples to sell their homes. Unlike any time in recent history, the slump in the economy in general, and in the housing market in particular, has had an impact on the ability of couples that decide to separate and divorce from actually following through on that plan. In times past, the equity amassed in the marital home was often the family's largest asset. In most areas of the country today, the value of a home's equity has substantially decreased. Unfortunately, it is becoming increasingly common to have no equity, or even negative equity, in a home. All too frequently, if the marital residence can be sold at all, the sellers have to bring a substantial sum of money to the settlement table ' something most sellers cannot afford to do.

As a result, many couples are postponing their separation, and if the parties do separate, it is becoming increasingly common for them to continue to live in the same house while seeking a divorce. Depending on the jurisdiction however, obtaining a divorce while the parties are still living in the same house may be difficult.

'No-Fault' Divorces

Generally speaking, the standard for granting a “no-fault” divorce is whether a couple has been separated for a set amount of time. If a couple is still sharing the same house, the burden of proving that they have stopped cohabiting as husband and wife, and that they are really living separate and apart, becomes significantly more difficult.

Separated couples who are forced by economic circumstances to share the same residence can take certain steps to improve their chances of being granted a divorce, however, starting with the recognition that perception is reality. How they present themselves to the world will impact the court's decision.

Many states have a statute with a provision for granting a “no fault” divorce. Depending on the state, such a divorce may be granted on the basis of irreconcilable differences between the parties, incompatibility, or upon proof that the marriage is irretrievably broken. Other states allow a divorce to be granted simply on the grounds that the parties have lived separate and apart without cohabitation and without interruption for a set time period. The statutorily mandated period during which the parties must be separated prior to the initiation of a divorce action varies by state. The required separation period can be anywhere from a few months to as many as five years.

In addition to the parties' being physically separated for the time period set by statute, most states require a showing that at least one of the parties has formed an intent ' prior to or contemporaneously with ' the separation and that the separation be permanent. For example, Section 20-91(A)(9)(a) of the Code of Virginia states that a divorce may be granted “on the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.” Under Virginia law, proof must also be presented that at least one of the parties to the marriage intended to end the marital cohabitation permanently, and that this intent was followed by a physical separation for the statutory period prior to a divorce being filed.

Elements in a Separation: What the Court Considers

A few state's codes, such as those of Delaware and the District of Columbia, specifically provide that married parties who wish to divorce can remain living separately in the same residence, as long as it is shown that they are living separate lives or that they no longer cohabit as husband and wife. Most state statutes are silent about what constitutes “physical separation.”

Not only must the family law practitioner be cognizant of whether the state in which he or she practices allows for a divorce based on the parties living separately for the statutory time period, the attorney must also understand the level of proof of physical separation and lack of marital cohabitation that is required to allow the court to grant such a divorce in their jurisdiction.

It is important for the attorney to review the state's case law addressing the grant of a divorce when the parties have remained living in the same residence. Only after a review of the particular state's case law can the family lawyer understand the amount of evidence needed to meet the required burden of proof that the parties have, indeed, ceased cohabiting and have lived separate and apart, although within the same abode, for the requisite time period to authorize the court to grant the divorce.

Family law attorneys must also be familiar with the leanings of the local judiciary before whom they appear. While some courts in a “no-fault” state routinely grant divorces to married couples who have lived separately but remained at the same residence during some or all of the separation period, other courts within the same state may take a more narrow view of what constitutes true “physical separation.” Those courts espousing a narrow construction of the terms “physical separation” and/or “cessation of cohabitation” may be wary of any living arrangement where the parties share the same address. More evidence will be required on the nature, extent and duration of the separation. Thus in essence, one court may require a higher degree of proof that the parties are actually separated and have stopped cohabiting as husband and wife than another court in a neighboring county.

Whether, and for how long the parties have lived separate and apart without cohabitation is strictly a fact-based inquiry. The court will examine the circumstances of each particular case. To decide whether the parties have actually ceased living as a married couple, the family law attorney may need to provide evidence and testimony that the parties have pursued separate lives, even while living under the same roof.

For example, the court will look at whether the parties have held themselves out as a married couple to others during the period of separation. Have the parties told their close family members of their separation and impending divorce? Have they told their mutual friends? Do the parties continue to go to social functions or on vacations together? Do they have clearly defined and separate living areas within the house? Do they continue to have sexual relations? Generally, courts want to see strong indications that, while the parties may live at the same address, they are living separate lives.

Can a Separated Couple Remain Living in the Same House?

There are several steps that parties can take to help prove the validity of their separation, despite the fact that they are still living at the same address

If neither party is able to move from the marital residence, each of them should primarily reside in a different area of the house. One party sleeping in another bedroom while leaving his/her clothing in the master bedroom closet and keeping his/her toiletries in the master bath usually will not be considered a cessation of cohabitation. It must be remembered that for a variety of reasons, many happily married couples choose to sleep in separate bedrooms. A partner's snoring, or nighttime restlessness commonly lead a husband or wife to sleep elsewhere, if simply to assure a sound night's sleep. In these instances, there is no intent to cease cohabitation.

The cessation of sexual relations, coupled with sleeping in separate bedrooms, is generally not enough to prove that the parties are separated. In order to prove that they are separated, the parties need to have living spaces that are clearly defined as areas being used solely by one or the other.

Like roommates, the parties should draw clear lines of separation regarding household responsibilities. Although it may be uncomfortable for the parties to have visitors at the house while they are living in such a manner, it is important for other individuals to know of the actual living situation and be able to testify to the actual separation. Only with corroborating testimony of witnesses can it be clearly shown that each person's living area and household responsibilities are separate from the other's, even if the living areas happen to be in the same structure. Providing witnesses to the court to testify that the husband and wife do not cook or clean for each other and that they live in separate areas of the house will support the validity of the separation.

In Carol and Bob's case, their house has a finished basement with a bath. If they chose to separate, one of them could move to the finished lower level to establish a “separate residence” within the same house. They should let their close family members and friends know that they are separated. They should make efforts to have friends and relatives visit them at the house so that these friends and relatives can truthfully testify about the separate living arrangements.

People who are truly separated do not usually clean or cook for the other person. Each party should shop for his/her own food, clothing and household supplies. Each should do his/her own laundry and take care of his/her own living areas. The parties should take turns taking their son to his activities, practices and games, rather than attending those events as a family unit. If Bob and Carol attend an end of the season soccer dinner with their child, that one event will not necessarily negate the fact that they are separated. However, regularly driving to soccer practices together with their son in the family van may negate the allegation of living separate and apart. Many parents come up with schedules to take turns caring for their child, whether they are separated or not. Bob and Carol might devise a plan whereby their child gets the benefit of having both parents available to him, but alternatively rather than together.

Conclusion

In order to be granted a “no-fault” divorce, the parties must establish that they have lived separate and apart without marital cohabitation for the requisite statutory time period. In these difficult economic times, more couples who want to separate and divorce are, by necessity, having to remain in the same house. However, with planning and care, a separation can be accomplished even if the parties continue to share one address.

It is important for the family law practitioner to know the relevant state's statutory requirements for having a divorce granted based on the parties living separate and apart, to know whether their local court grants such a divorce if the parties are living separate and apart in the same abode, and to know the level of proof required to meet such a burden to enable the divorce to be granted.

Shirley Keisler, a member of this newsletter's Board of Editors, is a partner at KeislerLee PLLC (Fairfax, VA), and has practiced family law for nearly 20 years. She can be reached at [email protected].

Bob and Carol have been married for 10 years and have an eight-year-old son. Shortly after their marriage, they bought a house for $400,000 and now have a mortgage with a balance of $390,000. It's a nice, three-level house including a family room with a bathroom on the lower level. They are current on all payments due on the mortgage. However, because of the downturn in the real estate market, the house currently would appraise for approximately $350,000.

Over the past couple of years, the couple's relationship has deteriorated and now they have decided to separate. The problem is, with the devaluation of the real estate market, it would be difficult to sell their house right now, and even if they could, the costs of sale and the low appraisal value would mean that the house would sell for less than the balance on the mortgage.

Although they both work, neither can afford to move out of the marital home and move into another residence. They cannot live with each other any longer, but they cannot afford to live apart. Some states require that a couple live “separate and apart” for a specified period of time before they can file for divorce. If they cannot sell the house, and one of them cannot afford to move out of the marital home, what can they do?

Separated But Under the Same Roof

The downturn in the housing market has made it more difficult for many separated couples to sell their homes. Unlike any time in recent history, the slump in the economy in general, and in the housing market in particular, has had an impact on the ability of couples that decide to separate and divorce from actually following through on that plan. In times past, the equity amassed in the marital home was often the family's largest asset. In most areas of the country today, the value of a home's equity has substantially decreased. Unfortunately, it is becoming increasingly common to have no equity, or even negative equity, in a home. All too frequently, if the marital residence can be sold at all, the sellers have to bring a substantial sum of money to the settlement table ' something most sellers cannot afford to do.

As a result, many couples are postponing their separation, and if the parties do separate, it is becoming increasingly common for them to continue to live in the same house while seeking a divorce. Depending on the jurisdiction however, obtaining a divorce while the parties are still living in the same house may be difficult.

'No-Fault' Divorces

Generally speaking, the standard for granting a “no-fault” divorce is whether a couple has been separated for a set amount of time. If a couple is still sharing the same house, the burden of proving that they have stopped cohabiting as husband and wife, and that they are really living separate and apart, becomes significantly more difficult.

Separated couples who are forced by economic circumstances to share the same residence can take certain steps to improve their chances of being granted a divorce, however, starting with the recognition that perception is reality. How they present themselves to the world will impact the court's decision.

Many states have a statute with a provision for granting a “no fault” divorce. Depending on the state, such a divorce may be granted on the basis of irreconcilable differences between the parties, incompatibility, or upon proof that the marriage is irretrievably broken. Other states allow a divorce to be granted simply on the grounds that the parties have lived separate and apart without cohabitation and without interruption for a set time period. The statutorily mandated period during which the parties must be separated prior to the initiation of a divorce action varies by state. The required separation period can be anywhere from a few months to as many as five years.

In addition to the parties' being physically separated for the time period set by statute, most states require a showing that at least one of the parties has formed an intent ' prior to or contemporaneously with ' the separation and that the separation be permanent. For example, Section 20-91(A)(9)(a) of the Code of Virginia states that a divorce may be granted “on the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.” Under Virginia law, proof must also be presented that at least one of the parties to the marriage intended to end the marital cohabitation permanently, and that this intent was followed by a physical separation for the statutory period prior to a divorce being filed.

Elements in a Separation: What the Court Considers

A few state's codes, such as those of Delaware and the District of Columbia, specifically provide that married parties who wish to divorce can remain living separately in the same residence, as long as it is shown that they are living separate lives or that they no longer cohabit as husband and wife. Most state statutes are silent about what constitutes “physical separation.”

Not only must the family law practitioner be cognizant of whether the state in which he or she practices allows for a divorce based on the parties living separately for the statutory time period, the attorney must also understand the level of proof of physical separation and lack of marital cohabitation that is required to allow the court to grant such a divorce in their jurisdiction.

It is important for the attorney to review the state's case law addressing the grant of a divorce when the parties have remained living in the same residence. Only after a review of the particular state's case law can the family lawyer understand the amount of evidence needed to meet the required burden of proof that the parties have, indeed, ceased cohabiting and have lived separate and apart, although within the same abode, for the requisite time period to authorize the court to grant the divorce.

Family law attorneys must also be familiar with the leanings of the local judiciary before whom they appear. While some courts in a “no-fault” state routinely grant divorces to married couples who have lived separately but remained at the same residence during some or all of the separation period, other courts within the same state may take a more narrow view of what constitutes true “physical separation.” Those courts espousing a narrow construction of the terms “physical separation” and/or “cessation of cohabitation” may be wary of any living arrangement where the parties share the same address. More evidence will be required on the nature, extent and duration of the separation. Thus in essence, one court may require a higher degree of proof that the parties are actually separated and have stopped cohabiting as husband and wife than another court in a neighboring county.

Whether, and for how long the parties have lived separate and apart without cohabitation is strictly a fact-based inquiry. The court will examine the circumstances of each particular case. To decide whether the parties have actually ceased living as a married couple, the family law attorney may need to provide evidence and testimony that the parties have pursued separate lives, even while living under the same roof.

For example, the court will look at whether the parties have held themselves out as a married couple to others during the period of separation. Have the parties told their close family members of their separation and impending divorce? Have they told their mutual friends? Do the parties continue to go to social functions or on vacations together? Do they have clearly defined and separate living areas within the house? Do they continue to have sexual relations? Generally, courts want to see strong indications that, while the parties may live at the same address, they are living separate lives.

Can a Separated Couple Remain Living in the Same House?

There are several steps that parties can take to help prove the validity of their separation, despite the fact that they are still living at the same address

If neither party is able to move from the marital residence, each of them should primarily reside in a different area of the house. One party sleeping in another bedroom while leaving his/her clothing in the master bedroom closet and keeping his/her toiletries in the master bath usually will not be considered a cessation of cohabitation. It must be remembered that for a variety of reasons, many happily married couples choose to sleep in separate bedrooms. A partner's snoring, or nighttime restlessness commonly lead a husband or wife to sleep elsewhere, if simply to assure a sound night's sleep. In these instances, there is no intent to cease cohabitation.

The cessation of sexual relations, coupled with sleeping in separate bedrooms, is generally not enough to prove that the parties are separated. In order to prove that they are separated, the parties need to have living spaces that are clearly defined as areas being used solely by one or the other.

Like roommates, the parties should draw clear lines of separation regarding household responsibilities. Although it may be uncomfortable for the parties to have visitors at the house while they are living in such a manner, it is important for other individuals to know of the actual living situation and be able to testify to the actual separation. Only with corroborating testimony of witnesses can it be clearly shown that each person's living area and household responsibilities are separate from the other's, even if the living areas happen to be in the same structure. Providing witnesses to the court to testify that the husband and wife do not cook or clean for each other and that they live in separate areas of the house will support the validity of the separation.

In Carol and Bob's case, their house has a finished basement with a bath. If they chose to separate, one of them could move to the finished lower level to establish a “separate residence” within the same house. They should let their close family members and friends know that they are separated. They should make efforts to have friends and relatives visit them at the house so that these friends and relatives can truthfully testify about the separate living arrangements.

People who are truly separated do not usually clean or cook for the other person. Each party should shop for his/her own food, clothing and household supplies. Each should do his/her own laundry and take care of his/her own living areas. The parties should take turns taking their son to his activities, practices and games, rather than attending those events as a family unit. If Bob and Carol attend an end of the season soccer dinner with their child, that one event will not necessarily negate the fact that they are separated. However, regularly driving to soccer practices together with their son in the family van may negate the allegation of living separate and apart. Many parents come up with schedules to take turns caring for their child, whether they are separated or not. Bob and Carol might devise a plan whereby their child gets the benefit of having both parents available to him, but alternatively rather than together.

Conclusion

In order to be granted a “no-fault” divorce, the parties must establish that they have lived separate and apart without marital cohabitation for the requisite statutory time period. In these difficult economic times, more couples who want to separate and divorce are, by necessity, having to remain in the same house. However, with planning and care, a separation can be accomplished even if the parties continue to share one address.

It is important for the family law practitioner to know the relevant state's statutory requirements for having a divorce granted based on the parties living separate and apart, to know whether their local court grants such a divorce if the parties are living separate and apart in the same abode, and to know the level of proof required to meet such a burden to enable the divorce to be granted.

Shirley Keisler, a member of this newsletter's Board of Editors, is a partner at KeislerLee PLLC (Fairfax, VA), and has practiced family law for nearly 20 years. She can be reached at [email protected].