In Lisann v. Lisann, Virginia’s Supreme Court has added a requirement to the standards for no-fault divorce: not only must a couple live apart for a year (or six months if they have no minor children and sign a separation agreement),  but one of them has to continuously intend, for the one-year or six-month period before filing, a permanent separation.

Our current Virginia clients’ cases are not in any danger from the Lisann decision, because we were already treating “continuous intent” as a requirement, out of an abundance of caution. And depressingly, it’s exactly such prudent practices — adding extra facts in our filings just in case an over-imaginative judge or law clerk treats them as requirements — that the Court cited in its decision: “a plethora of family law practice handbooks in  Virginia have recognized this principle in sample complaints for divorce.” It also cited a 1997 state bar report opposing Covenant Marriage legislation, which casually included a phrase about continuous intent when describing Virginia no-fault divorce’s requirements.

This decision violates the excellent advice and example that the Court provided in Canody v. Hamblin (2018) where it refused to elevate some lawyers’ preferred “best practice” — having a testator initial every page of the will — into an additional requirement that would have invalidated all the wills made without doing that. It really is a disturbing dynamic — you add extras to your contracts, pleadings and evidence to defend against a few judges who invent additional requirements; but that defensive prudence makes it more likely that people will treat those things as mandatory, and simpler, human-scale drafting as negligence.

As public policy, the decision also seems mostly wrong on the substance. It depends on what the purpose of these separation/waiting periods is — a “cooling-off” period to give couples time to reconcile if possible? Or a “frozen” period where you have to show that you’ve gone a year without even considering reconciliation?

The continuity requirements discourage reconciliation attempts, by saying that if you try to reconcile and fail to, even without ever moving back in together, your one-year wait has to start all over again. They are even more anti-family when they impose that consequence on couples who simply act civil and child-focused: those who have a child’s birthday party together instead of holding two competing ones, get together with family on holidays, or do anything together with the children. But still, the benefit of doing those things far outweighs the slight danger that judges will do that, if they even hear about them.

On the other hand, it does make sense to require a clear intent of marital separation — not just physical absence for military, employment, travel, medical or elder-care reasons — to have been communicated at some point at least one year before filing. Without that, things that were not the kind of separation that the no-fault divorce law has in mind would get used to blindside the other spouse with a divorce, or to impose an inaccurately early date of separation for purposes of classifying property and income as separate property, immune from division.

But once that kind of separation has begun, with both spouses clearly understanding that that’s what it is, reconciliation attempts should be encouraged, not punished. A truly exemplary family law attorney and mediator, Brian Hirsch, praises the new rule as reducing “gamesmanship.” But I have more often seen gamesmanship in fake reconciliation attempts that appear designed only to re-start the clock on when property and income are separate versus marital —and, much worse and much more often, in people being wary of reconciliation attempts because they suspect that that’s what they may turn out to be.

So should you avoid reconciliation attempts because of this odd wrinkle in the law? Absolutely not. But use your head and your heart, stay situation-aware, and consider the track record and character of who you’re dealing with.