With home prices down and unemployment up, some people who would like to divorce cannot afford to separate.   As in other divorce topics in the Washington area, the answer to the question “Can I get a divorce if neither I nor my spouse has moved from the marital home?” is, once again, “It depends on the jurisdiction.” 

             The applicable no fault divorce ground statutes are:

Maryland – Sec. 7-103(a)(3)  of the Family Law Article provides that the Court can grant an absolute divorce if the parties voluntarily have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce; and there is no reasonable expectation of reconciliation.  Sec. 7-101(b) of the Family Law Article provides that a court may not enter a decree of divorce on the uncorroborated testimony of the party who is seeking the divorce. Corroboration by the other spouse is not sufficient.

 Virginia – Va. Code Sec. 20-91(a)(9)(a) provides that a divorce may be decreed:  “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. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, 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.    Va. Code Sec. 20-99. provides that “no divorce, annulment, or affirmation of a marriage shall be granted on the uncorroborated testimony of the parties or either of them.”

 District of Columbia – D.C. Code Sec.16-904(a). provides that “a divorce from the bonds of marriage may be granted if: (1) both parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation for a period of six months next preceding the commencement of the action;” or “(2) both parties to the marriage have lived separate and apart without cohabitation for a period of one year next preceding the commencement of the action.”

            The first difference is that Maryland and Virginia require that the grounds for divorce be corroborated by evidence in addition to the testimony of the spouses.  Think about that. How you can corroborate that the parties living in the same house are no longer having marital relations?  Some Maryland judges and domestic relation masters (DRM) are incredibly hostile to these cases.  In one of our cases we used the parties’ 20 year old son as corroborating witness.  He testified that Mom and Dad slept in different bedrooms and his was in between.  He testified that there were no conjugal visits.  The DRM asked whether he took a vacation during the year.  He went to Florida for Spring Break like all the other 20 year olds.  The DR master found that our client failed to present corroboration that the separation continued throughout the entire year.  No divorce that day.

             There are Maryland cases hold that you cannot be divorced on “separate and apart” grounds without moving out because, even if the parties want to divorce and no longer cohabitate, that is have sexual relations, they cannot be said to be living separate and apart, as required by the statute if they live in the same house.   This has been held to bar the divorce when one spouse move back in even temporarily for financial or other reasons.  Lillis v. Lillis, 235 Md. 490; 201 A.2d 794; 1964 Md. LEXIS 787 (Md. 1964).  The Maryland Court of Appeals recently granted a limited divorce on constructive desertion grounds where the spouses still lived in the same house but the appellate courts of Maryland have not ruled in any case that this applies to the voluntary separation ground.

              Virginia is less hostile and one can find lawyer’s web sites claiming a divorce can be obtained without difficulty in these circumstances. Note also that divorce in Virginia may be granted upon separation for one year if one party intends that the separation be permanent.  In ADNAN BCHARA v. MARJA KAARINA BCHARA, 38 Va. App. 302; 563 S.E.2d 398; 2002 Va. App. LEXIS 290 (Va. App. 2002) the trial court granted a divorce on separation grounds.  In affirming the Court of Appeals found the following facts persuasive:            

              In January 2000, wife found a videotape showing husband involved in an adulterous affair. She immediately took all of husband’s possessions out of the master bedroom and put them in a guest bedroom, where husband usually slept. A friend of wife was in the house when the tape was discovered.  Husband does not deny that wife found the tape or that she moved all his belongings into the guest bedroom, although he claims none of this changed their marital relationship.
            Wife testified she took several actions to live separate and apart from husband starting in January 2000. She stopped attending family functions with husband and his family. She would not attend church with him. She stopped depositing money into their joint checking account. However, she continued to buy groceries, cook, do laundry, and clean house. Wife asked husband several times to leave the house, but he refused.
            A friend of wife testified she visited the house once a week and observed the parties living in separate bedrooms. Wife told this friend that she and husband were no longer “a couple.” Wife testified that she intended to live separate and apart from husband as of January 2000.”
(footnotes omitted)

            Separation in the same house requires a separation – you cannot be separated in the same bedroom, a clear starting event – here the discovery of adultery, and corroboration – so you need at least one frequent visitor.  The other facts in Bchara were a mixed bag but the divorce was granted.

            Despite Bchara, when I attended a continuing legal education class a few years ago where two Virginia’s judges were presented with a hypothetical case where the parties were living separate in the same house and sought a divorce the judges did not agree. In the hypothetical – the spouses slept in separate bedrooms and did not have sex, they had separate finances and told people they were separating. Since they had children they shared some family meals and went to some children’s activities together.  One judge present said he would grant the divorce another judge said she would not. 

            There does not appear to be a significant problem obtaining a divorce on separation grounds without moving out in the District of Columbia.  I find no reported cases denying a divorce on separation grounds because neither spouse has moved out of the joint residence.  Also there is no corroboration requirement so those difficulties are not present. And the Superior Court is the only trial court so there is no possibility of varying interpretation between circuit courts as there appears to be in Maryland and Virginia.

            In summary, in Maryland and possibly some counties of Virginia, there is serious question about whether you can obtain a divorce upon voluntary separation grounds without moving out.  You can maximize the likelihood of success by having a written separation agreement, a clear event such as one spouse moves to the basement or lower level, document and witnessed, of course don’t have sexual relations, separate the finances, don’t go out together and tell everyone you are separated and you are getting a divorce.  If you have children, don’t have family dinners and don’t drive to their events together.

            So if the answer is “It depends on the jurisdiction.”  Really the question is not the one we started with but “Can I be certain that I can get a divorce without planning very carefully if neither I nor my spouse has moved from the marital home?”