As discussed in the Fault v. No-Fault section, the easiest way to describe “no-fault” is to discuss the term in ways many other jurisdictions do…namely by referring to is as “irreconcilable differences.” In other words, in cases where the parties do not want to prove a fault-based ground (such as adultery, cruelty, among others), one or both of the parties can proceed in a divorce action and ultimately be granted a divorce on a “no-fault ground.” In order to be granted a divorce on this basis, the parties are required to be separated for a specific period of time and with the intent that the separation period be continuous, uninterrupted and permanent.
If there are no children and the parties have entered into a Separation Agreement, then the Separation Period only needs to be six months before the parties will be granted a divorce on this basis.
If there are minor children involved or if the parties have not entered into a Separation Agreement, then the Separation Period must be minimally one-year.
With the economic environment as it is, and the fact that home values have dropped precipitously in recent years, it has become harder and harder for couples to separate and afford separate residences. Where it used to be that folks could easily sell their homes and take the proceeds and set up both parties in new living arrangements, this just isn’t possible in many cases now with depressed home values and in cases where homes are financially under water. Because of this, Circuit Court judges have become more willing to accept a separation in the same home.
Warning: While it is possible to be separated in the same home and then ultimately be granted a divorce on a “no-fault” basis, living separately in the same residence can sometimes be very difficult and problematic to prove to a judge. If a judge does not accept your separation period where you and your spouse attempted to live separate and apart in the same home, it is possible your divorce case will be rejected and you will have to come back after another year of living separately. The best way to avoid this is to consult with an attorney to make sure you are doing everything you can to properly evidence a continuous, uninterrupted and permanent separation – even if it is in the same home.
There is no law that specifically spells out what a couple must do to live separately (or separate and apart) in the same home. There are a few things that one can do to evidence a separation, but again, there is no guarantee that just because you do these things, a judge will grant you a divorce merely on the basis of being separated for the required period of time. With that said, there are some things a couple should and shouldn’t do during a separation period if living in the same home is the only option:
• Use separate bedrooms;
• Do not engage in romantic or sexual intimacy;
• Establish and maintain the intent to separate permanently and indefinitely;
• Establish separate checking accounts;
• Do not eat meals together;
• Shop for your own food and prepare your own meals (do not shop for each other);
• Stop wearing wedding rings;
• Do not hold yourself out as a couple to the community;
• Use a separate and secure computer, as well as telephone/cell phone for personal and business use;
• Do not socialize together
° Do not attend parties, movies or events together;
• Do not attend church together
• Make known to close friends and relatives that you are not living as husband and wife but are separated in the same home;
• Have these close friends or relatives come to the home and personally observe the separate and distinct living arrangement so that they may be able to testify on your behalf if needed;
• Utilize separate entrances, if possible.
• Each spouse should do their own laundry;
• Cease gift giving between spouses on all special occasions;
These are not easy things to accomplish. Similarly, just because you do all of these things, does not mean a judge will be convinced of your separation period. On top of that, if there are minor children involved, this can be extremely difficult. The best thing to do is to interact as parents only where strictly necessary for the children’s well-being. It would certainly be appropriate to attend a parent-teacher conference where the other spouse is present. It would be less appropriate to sit together at a sporting event, concert, or play for the child. One suggested approach is to try to interact as if one of the spouses really did have a separate residence. In those instances, meals would be purchased and prepared separately and each spouse would attend events separately from their own respective residence, among many other things.
While there is no one specific answer or checklist that can be provided to prove that you have in fact lived separate and apart in the same home, there are many things you can do to set your case on the right path. Consulting an attorney about your specific facts and how those facts relate to the law on being separated for the requisite amount of time is the best way to make sure a judge does not reject your separation period and so you do not waste time during this important period.