Dissolution vs. Reconciliation

Divorce can often be a difficult and trying time for a married couple, especially when the couple has children together. Occasionally, couples in a marital dissolution action attempt to reconcile for a variety of different reasons. While reconciliation may prove to be a good idea for some couples, there are important legal ramifications of reconciling.

In Virginia, dissolution of marriage actions can be fault-based or “no fault” based. In a fault-based divorce, one spouse must allege wrongdoing on the part of the other spouse (adultery, abandonment, desertion, cruelty, and felony conviction). When served with divorce papers, the spouse against whom allegations are made is given an opportunity to admit to the allegations or deny the allegations as well as raise defenses and file counterclaims against the other spouse. If the couple chooses to reconcile after papers have been filed and before a divorce has been granted, the couple must ask the court to stop the dissolution of marriage action based on reconciliation. Otherwise, the court will enter a judgment of divorce.

In a “no-fault” divorce, neither spouse blames the other of wrongdoing. Rather, the couple legally separates by not living together for a period of time. To obtain a no-fault divorce, a married couple with children and/or contested issues of property division must live separate and apart from one another for a minimum period of one year. If the couple has no minor children, a no-fault divorce may be granted if the couple lives separate and apart for a period of six months, provided that both spouses enter into a legally executed and complete settlement agreement.

The primary purpose behind the specific waiting periods for a no-fault divorce is to allow the couple an opportunity to reconcile. However, reconciliation is not simply a state of mind. A couple legally reconciles if the spouses hold themselves out publically as married to the other, cohabitate in the same residence, sleep in the same bed and engage in sexual intercourse. Though isolated instances of cohabitation or intercourse will likely not be sufficient to prove reconciliation, engaging in these activities for weeks or months at a time—especially if there are ongoing talks about getting back together—will likely be sufficient to prove a reconciliation.

The legal consequences of reconciliation are significant. First, reconciliation destroys any grounds for a fault-based divorce based on desertion. Thus, if one spouse has a claim of desertion against the other spouse but then reconciles, the first spouse cannot later assert desertion in a divorce action, unless the second spouse legally deserts the first spouse after the reconciliation.

Reconciliation also re-sets the clock for no-fault divorces. This means that if a married couple with children has been living apart for five months, reconciles by cohabitating and sleeping together for a period of two months and then decides to split up again, the one year waiting period starts over and the couple will have to live separate and apart for an entire year before obtaining a no-fault divorce. One of the best ways to avoid this scenario is for the couple to enter into a well-drafted settlement agreement during the waiting period that states the separation and agreement will remain in full force and effect regardless of any reconciliation.

If you are seeking a divorce, currently going through a divorce and/or considering reconciliation, be sure to consult with an experienced family law attorney who knows the law and can protect your rights. DiPietro Family Law Group, PLLC has teams of experienced family lawyers in Northern Virginia and Washington, DC. Contact us to schedule a consultation today at (703) 370 – 5555.

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