Anthony Matysek drank quite frequently and humiliated his wife on a number of occasions.  Following an argument with his wife, Marjorie Matysek, on the night of July 25, 1952, he repeatedly told her that she was “no good” and to “get out”.  She said “All right”, and early the next morning she moved to her mother’s home never to return.

Three years later, she sued for divorce based on a voluntary and mutually agreed separation.  Anthony denied that the separation was voluntary, and asserted that it was not by mutual agreement.

The Court of Appeals said that a voluntary agreement to live separate and apart does not have to be arrived at either with “calmness and courtesy or without anger”.

It distinguished the case of Miller v. Miller, where the husband threatened to leave the wife and she replied “Well if you want to go, go on and go, but you are going to have to take care of these children.”

The husband claimed that this amounted to a voluntary agreement to separate.  The court said it was merely to acquiescence in what she could not prevent, and that was not a voluntary agreement.

The difference in the Matysek case is that when the husband demanded that the wife leave, she could have refused.  Instead, she agreed to leave and she did leave.  The Court said:

We think that the language and conduct of the parties on the night of July 25th and the early morning of July 26th were sufficient to support the Chancellor’s explicit finding that the separation was voluntary. At the conclusion of the testimony he said: “I think these people separated voluntarily. They were glad to get away from each other.”

Matysek V. Matysek, 212 Md. 44; 128 A.2d 627 (1956)

When Marja Kaarina Bchara suspected her husband, Adnan Bchara, of adultery in January of 2000, she moved his possessions out of the master bedroom and into the guest bedroom, and sued him for divorce.

At trial the wife testified she took these actions to live separate and apart from her husband.  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.  She said she asked her husband several times to leave the house, but he refused to do so.

A friend of the wife testified she visited the house once a week and observed the parties living in separate bedrooms.  The wife told her friend that she and husband were no longer “a couple.”   The divorce was granted.  Adnan Bchara V. Marja Kaarina Bchara, 38 Va. App. 302; 563 S.E.2d 398 (Va. App. 2002).

So in Virginia, unlike Maryland, you can get a divorce based on separation while living in the same house.  Also in Virginia, unlike DC and Maryland, a divorce may be granted upon separation for one year if only one of the parties intends that the separation be permanent.  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.

You can maximize the likelihood of success by:

  1. a written separation agreement
  2. a clear event such as one spouse moves to the basement or lower level, documented and witnessed
  3. don’t have sexual relations
  4. separate the finances
  5. don’t go out together
  6. tell everyone you are separated and you are getting a divorce
  7. if you have children, don’t have family dinners and don’t drive to their events together

VA Grounds for Divorce

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, “It depends on the jurisdiction.”

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 cohabit, that is have sexual relations, they cannot be said to be living separate and apart if they live in the same house.   This has been held to bar the divorce when one spouse moves back in even temporarily for financial or other reasons.  Lillis v. Lillis, 235 Md. 490; 201 A.2d 794 (Md. 1964).

The Maryland Court of Appeals recently allowed a limited divorce to proceed on constructive desertion grounds where the spouses still lived in the same house.  Last year the Maryland legislature considered a law that would have allowed divorces in certain cases on grounds of voluntary separation while the parties still lived together, but it did not pass.  Next we’ll examine how Virginia views divorce without moving out.

Justice Oliver Wendell Holmes, Jr. said we have a great experiment going on with the laws in the different states in the U.S.  We can see which ones work best.

Arizona is trying to decide whether or not to increase the time of separation in that state from two months to six months.

Meanwhile, Maryland Senator Zirkin  has introduced Senate Bill 577 that would reduce the time from one year to six months for a voluntary separation in Maryland.  The period for involuntary separation would change from two years to one year.  If it passes, the bill would be effective for divorces filed after October 1, 2010.

This would bring Maryland in line with the separation period required in its neighboring jurisdictions, Virginia and DC.