Intention to End Marriage Subjective intent to dissolve marriage is required. separation must be with an intention on the part of at least “The ‘coupled one of the parties to live separate and apart permanently, and [this] intention must be shown to have been present at the of the beginning’ separation Pearson v. Vanlowe (Va. 2005). period.” Separation because of military service or incarceration may not qualify without subjective intent to dissolve marriage. Factors Showing Intent Fact-specific inquiry Attending social gatherings; Acting jointly in financial matters; Having meals together Parties may continue to share food and keep a clean house and still intend to live separate and apart. Reconciliation Attempts May reset the clock on the separation period. spouses’ toward reconciliation do terminate the BRIEF OVERTURES NOT separation period. of the marital relationship terminates the INTENTIONAL RESUMPTION separation period. cohabitation between the parties, after the separation, “Mere casual unaccompanied by resumption of normal married life . . . is not sufficient to show a reconciliation or an agreement to live and cohabit together again on a permanent basis as husband and wife.” Separation Agreements Establish intent to live separate and apart. spouses’ Determine financial and other consequences of dissolution. Shortening Waiting Period May occur if both parties consent to divorce. E.g., – Pennsylvania. Irretrievable Breakdown Definition or both spouses are unable or unwilling to cohabit and there – “Either are no prospects for Caffyn v. Caffyn (Mass. 2004). reconciliation.” Richter v. Richter (Minn. 2001) Irretrievable Breakdown there is a dispute about whether a Multifactor Analysis – “If marriage is irretrievably broken, the court shall consider all relevant factors and find whether the marriage is irretrievably broken. Note that the court must make a finding of irretrievable breakdown. Definition occurs when there is no – “‘Irretrievable breakdown’ reasonable prospect of reconciliation.” Elements find irretrievable breakdown of a marriage in a – “To case where the existence of such a breakdown is contested, the finding of irretrievable breakdown must be supported by evidence
Intention to End Marriage Subjective intent to dissolve marriage is required. “The separation must be ‘coupled with an intention on the part of at least one of the parties to live separate and apart permanently, and [this] intention must be shown to have been present at the beginning’ of the separation period.” Pearson v. Vanlowe (Va. 2005). Separation because of military service or incarceration may not qualify without subjective intent to dissolve marriage. Factors Showing Intent Fact-specific inquiry Attending social gatherings; Acting jointly in financial matters; Having meals together Parties may continue to share food and keep a clean house and still intend to live separate and apart. Reconciliation Attempts May reset the clock on the spouses’ separation period. BRIEF OVERTURES toward reconciliation do NOT terminate the separation period. INTENTIONAL RESUMPTION of the marital relationship terminates the separation period. “Mere casual cohabitation between the parties, after the separation, unaccompanied by resumption of normal married life . . . is not sufficient to show a reconciliation or an agreement to live and cohabit together again on a permanent basis as husband and wife.” Separation Agreements Establish spouses’ intent to live separate and apart. Determine financial and other consequences of dissolution. Shortening Waiting Period – May occur if both parties consent to divorce. E.g., Pennsylvania. Irretrievable Breakdown Definition – “Either or both spouses are unable or unwilling to cohabit and there are no prospects for reconciliation.” Caffyn v. Caffyn (Mass. 2004). Richter v. Richter (Minn. 2001) Irretrievable Breakdown Multifactor Analysis – “If there is a dispute about whether a marriage is irretrievably broken, the court shall consider all relevant factors and find whether the marriage is irretrievably broken. Note that the court must make a finding of irretrievable breakdown. Definition – “‘Irretrievable breakdown’ occurs when there is no reasonable prospect of reconciliation.” Elements – “To find irretrievable breakdown of a marriage in a case where the existence of such a breakdown is contested, the finding of irretrievable breakdown must be supported by evidence
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