FOR YOUR VIEWING PLEASURE, A MEMO ARGUING JUST THE OPPOSITE:


Seeking a Final Decree of Divorce, the parties in this case appeared before the Court, which indicated that the second element of 15 VSA § 551(7) --- resumption of marital relations is not reasonably probable --- was met. But because the parties both reside in the same house, the Court instructed the parties to submit memoranda addressing the first element, viz., whether they had "lived apart" from one another for six consecutive months.

Vermont law

In Scott v. Scott, 155 Vt. 465 (1990), the Supreme Court directly addressed the very question now presented. The Court stated its clear view that the dispositive issue was whether the parties had separate lives and that whether they lived within the same building or in different buildings was simply one factor among many to be considered.

"Defendant first argues that the statute in the context of grounds for a final divorce requires that the parties not have lived under the same roof for the requisite period. While we have not addressed this specific question, we have determined that for purposes of temporary orders in divorce matters, 'separation of the parties' as used in 15 V.S.A. § 594a does not mean that one of the parties must have vacated the house. Rather, '[c]ontinued residence in the same dwelling is but one factor to be considered with others in determining the nature of the relationship between the parties.' Buxton v. Buxton, 148 Vt. 22, 25, 527 A.2d 660, 663 (1987). We believe that this rationale should apply in determining whether parties have lived apart under § 551(7). As observed in Boyce v. Boyce, 153 F.2d 229, 230 (D.C. Cir. 1946), the 'essential thing is not separate roofs, but separate lives,' and in Heckman v. Heckman, 245 A.2d 550, 551 (Del.1968), 'a couple may live separate and apart even under the same roof.' " Scott v. Scott, 155 Vt. at 468.

Acknowledging that other jurisdictions hold that residing under the same roof is fatal to a contention that the parties lived apart, the Court nonetheless took a broader view and embraced the views expressed in Boyce and Heckman. Id. A court is bound to look beyond the mere street address and consider other elements of a marriage, "such as affection, solace, comfort, companionship, society and assistance, to name a few...." Id. at 469.

In Scott, evidence that the parties had not had sexual relations for fifteen years led the trial court to find that the marriage had been abandoned. Reversing, the Supreme Court recounted the plaintiff's testimony that "they slept in the same bed, watched T.V. together in the evening, took walks together, and held out to others that they were husband and wife." Id.

The plaintiff in Scott had complained that, for a year, the defendant "had made her life hell, would no longer take her out and did as he pleased...." Such evidence, the Court observed, was directed to the quality of the marriage, however, and not whether the marriage had been abandoned. "'[A] mere finding that their relationship was bereft of positive qualities is insufficient' " Id., quoting with approval Ellam v. Ellam, 132 N.J. Super. 358, 362-63 (1975).

Bright-line rule: separate residences absolutely required

As the Scott court noted, courts in other jurisdictions have issued decisions that adhere to a bright-line rule that the bare fact that the parties reside within the same house is an unyielding bar to a divorce. Cases in which that single fact was dispositive include the following:

Billac v. Billac, 464 So.2d 819, 821 (La. App. 5th Cir. 1985)
Barnes v. Barnes, 276 S.C. 519, 520 (1981)
Jackson v. Jackson, 13 Md.App. 725, 732 (1971)
Oxford v. Oxford, 237 Ark. 384, 385 (1963)
Richardson v. Richardson, 257 N.C. 705, 709 (1962)
McDaniel v. McDaniel, 165 S.W.2d 966, 967 (Ky. App. 1942)
McNary v. McNary, 8 Wash.2d 250, 251 (1941)


Sympathy to the bright line, but mixed nonetheless

Cases from other jurisdictions in which the parties lived in the same house and a divorce was denied often have numerous other factors that contribute to the decision, leaving the issue less clear and suggesting that those other jurisdictions might follow the more searching examination that Vermont has chosen. Rogers v. Rogers, 258 Ala. 477 (1953), is typical.

The wife in Rogers filed a petition for divorce in which she asserted that she had "lived separate and apart from the bed and board of her husband...." Id. at 478. The evidence showed that the parties resided in the same house, which was owned by the wife, and that, for five years prior to the petition having been filed, the parties slept in separate rooms and did not have sexual relations. Id. at 479. But other evidence showed that the wife prepared the food; that the husband ate at the same table with both his wife and daughter; that the wife laundered the husband's clothes and attended to the housework with the assistance of her daughter; and that the parties held themselves out as man and wife in the community in which they lived. Id.

In a fashion comparable to those jurisdictions who adhere rigidly to the bright-line rule, the court observed that "living in separate rooms within the same matrimonial abode is not living 'separate and apart' within the meaning of the statute; nor does the fact that sexual relations cease constitute a living 'separate and apart' within the statute." Id., citing 27 C.J.S. Divorce § 42, p. 583. Nonetheless, the Court apparently felt bound to further consider the actual living circumstances of the parties, explaining as follows:

"Living 'separate and apart' implies something more than living in separate rooms in the same house and abstinence from sexual intercourse. It means, we think, a complete cessation of all marital duties and relations between the wife and the husband, and their living separate and apart in such a manner that those in the neighborhood may see that they are not living together." Rogers v. Rogers, 258 Ala. at 479, citing 27 C.J.S. Divorce § 162, p. 233.

Separate residences not required

Like Vermont, Pennsylvania courts are bound to consider the broad spectrum of factors that make up a marriage. When the Bucks County, Pennsylvania Court of Common Pleas took up the residence question in Chalupa v. Chalupa, 34 Pa. D&C3d 180 (1984), a divorce could be granted where the parties had lived separate and apart for at least three years and the marriage itself was irretrievably broken.

Mrs. Chalupa filed a petition in which she alleged both of the requisite elements, but her husband objected that he and his wife had resided within the same house for a portion of the requisite three-year period and that the wife therefore did not have sufficient grounds for a divorce. The court observed that "separate and apart" was defined in Pennsylvania law as "complete cessation of any and all cohabitation" but that the term "cohabitation" was not defined. Id. at 182. The court therefore delved into the state of the marital relations.

After an argument in July 1979, the parties began sleeping in separate rooms and ceased having sexual relations. They separated their finances and all of the husband's credit cards that the wife had access to were cancelled. The husband paid the household expenses and purchased the food, but the wife did not cook for him or take any meals with him and did not mend the husband's clothes. They did not go out socially, would not attend church together, did not communicate with one another at all and were in general totally estranged. The wife obtained her own telephone and expressed the state of marital discord and estrangement to her neighbors. Once financially able to do so, the wife moved out of the house. Id. at 184.

On such facts, the court found that it was "abundantly clear that the parties herein from July of 1979 maintained totally and entirely separate existences from one another." Id. at 185. That being the case, the requirement that the parties had lived separate and apart for at least three years was satisfied, the shared residence notwithstanding. Id.

In 1990, Pennsylvania's legislature relieved the courts of any need to consider the potential impact of the same-abode issue, amending the definition of "separate and apart" so that the term is now defined as "cessation of cohabitation, whether living in the same residence or not." 23 Pa.Cons.Stat. § 3103.

Illinois follows the same course as do Vermont, Pennsylvania, Delaware and the District of Columbia. In In Re: Marriage of Gorman, 284 Ill.App.3d 171, 182 (1996), the court declared that the "separation requirement can be satisfied even where the couple live in the same house because irreconcilable differences can be realized between the couple without living in separate residences." Id. at 182, citing In Re: Marriage of Dowd, 214 Ill.App.3d 156 (1991) and In Re: Marriage of Kenik, 181 Ill.App.3d 266 (1989).

Facts of this case

In this case, the relationship between the parties might accurately be described as a cordial business relationship, as reflected in the Final Stipulation, the verified Complaint and the affidavits of each of the parties, Sue and Jim.

Constrained by their financial circumstances, they find it useful to live in the same house and, doing so, they each contribute to the financial support of the household, sharing equally the mortgage payments, taxes, insurance, utilities, heating, groceries, household supplies, trash removal, snow-plowing and maintenance and repair expenses. But the funds necessary to do so are not co-mingled. Rather, they keep separate bank accounts and they each write checks directly to the respective vendors for one-half of the charges in each case.

Of necessity, there being only one kitchen, it is shared. They have agreed to treat one another politely, courteously and respectfully but have nonetheless also agreed that, should living in the same building become intolerable, the house will immediately be placed on the market so that it can be sold and, should that occur, they have agreed to a division of the proceeds. But their associating with one another ends there.

For two years prior to the filing of the Complaint and since, they have had their own discrete quarters in the house that are not shared with one another. Although they have from time to time attended their children's school and other functions, they do so as parents and not as a couple. They do not socialize together or go out together for dinner, parties, movies, sporting events, outdoors activities or other similar events. They do not drive one another here or there or run errands for one another, such as dropping off or picking up laundry at the dry cleaner's. They don't spend time sitting together on the front porch and have long made it plain to family and friends that their marriage is ended.

In sum, Sue and Jim do not have a marital relationship. They share an address and the bills that result from doing so and they each attend to their children as parents would ordinarily be expected to do. But they do not share a life together.