Predominant Intent Requirement for Statutory No-Fault Separation Divorce

Introduction

Lisann v. Lisann is a 2025 decision of the Supreme Court of Virginia resolving a novel question about the intent requirement for a no-fault, separation-based divorce under Virginia Code § 20-91(A)(9). After a lengthy marriage and worldwide relocations, Elizabeth Lisann moved into a separate home from her husband, Eric Lisann, on July 14, 2014. She filed for divorce in October 2019, claiming she and her husband had lived “separate and apart” for more than one year with the intent to remain separate permanently. At trial the spouses disputed whether that intent needed to exist only on “Day 1” of the separation period (the Court of Appeals’ position) or must predominate throughout the statutory one-year period (the traditional view adopted by the Supreme Court).

Summary of the Judgment

The Supreme Court of Virginia unanimously held that to obtain a divorce under Code § 20-91(A)(9), a party’s intent to live separate and apart permanently must not only exist at the outset of the statutory separation period, but must predominate throughout that entire period. While the Court rejected the Court of Appeals’ “Day-1 only” thesis, it nevertheless affirmed the trial court’s divorce decree because the record contained no evidence that the trial judge applied the wrong standard. On appeal the presumption that a trial court correctly applied the law survived, and sufficient evidence supported the finding that the wife’s permanent-separation intent predominated from July 2014 onward.

Analysis

Precedents Cited

• Hooker v. Hooker, 215 Va. 415 (1975) – First recognized that “lived separate and apart” under former Code § 20-91(9) implied an intent to discontinue marital cohabitation permanently and that such intent must exist at the beginning of the statutory period.
• Andrews v. Creacey, 56 Va. App. 606 (2010) – Reaffirmed Hooker’s rule that intent must exist at the commencement of the statutory period but did not address whether it must continue through the entire term.
• Purce v. Patterson, 275 Va. 190 (2008) – Established that, in the absence of express findings to the contrary, appellate courts view conflicts in the evidence in favor of the prevailing party at trial.
• Treatises and practice guides (Clark & Katz, Phelps, Virginia Family Law Benchbook) – Long described the traditional view: the separation must be “final and intentional” for the entire statutory period.

Legal Reasoning

1. Traditional view vs. Day-1 thesis Under the traditional rule, one spouse’s intent to remain permanently separated must predominate for the whole statutory one-year period. The Court of Appeals had held instead that a genuine intent on the first day of separation suffices—even if that intent wavers later—so long as the spouses remain physically apart and never reconcile. The Supreme Court rejected that counterintuitive reading as inconsistent with Virginia’s family-law tradition.

2. Textual and statutory harmonization The Court observed that Code § 20-91(A)(9) is silent on intent, but Code § 20-106(B)(5) (authorizing divorce by affidavit when no facts remain in dispute) expressly requires an affidavit affirming that the parties “have lived separate and apart, continuously, without interruption and without cohabitation, and with the intent to remain separate and apart permanently, for the statutory period required by subdivision A(9) of § 20-91.” The present-perfect verb “have lived” plus the qualifying phrase “for the statutory period” compels the conclusion that the legislature intended permanency of separation‐intent throughout the entire year, not merely on Day 1.

3. Implied intent in § 20-91 Hooker first implied the intent requirement in § 20-91(A)(9). Nothing in Hooker or Andrews supports a Day-1-only interpretation. The Court reaffirmed that intent is an essential component of the “lived separate and apart” standard and must “predominate” for the full statutory term.

4. Presumption of correct application Because the trial court did not articulate the precise legal test it used, the Supreme Court applied the presumption that “everything is to be presumed in favor of the correctness of the rulings of a court of competent jurisdiction” unless there is “clear evidence to the contrary.” The record did not show that the trial judge adopted the Day-1 test, so the final decree was affirmed on the ground that sufficient evidence supported the finding of predominating intent.

Impact

• Clarifies that Virginia’s no-fault, separation-based divorce demands more than a momentary or Day-1 intent; the party must prove that intent predominated throughout the one-year separation period.
• Ensures consistency between contested and uncontested divorces: both must meet the same “predominating intent” standard, whether argued at trial or affirmed by affidavit under § 20-106.
• Advises practitioners to plead and prove ongoing, predominant intent from the start of separation through one year later, and to anticipate challenges when attempting reconciliation.
• Codifies a uniform rule avoiding the specter of “instant divorce” after a fleeting expression of intent on Day 1, only to have parties wave the requirement later.

Complex Concepts Simplified

• Lived separate and apart: More than physical absence. Implies a dominant mental purpose to end cohabitation permanently.
• Statutory period: One year under Code § 20-91(A)(9)(a).
• Present-perfect tense (“have lived”): Signals an ongoing state up to the present—here, continuous separation and intent for the full year.
• Predominating intent: The chief or dominant purpose to remain separated permanently must override any mixed motives or temporary doubts during the separation year.
• Presumption of correct application: When a trial court does not specify its analytical path, appellate courts assume it applied the proper legal standard absent clear contrary evidence.

Conclusion

Lisann v. Lisann establishes a new, authoritative rule: to secure a statutory one-year separation divorce in Virginia, at least one spouse’s intent to live separate and apart permanently must predominate throughout the entire separation period. This decision rejects the Court of Appeals’ Day-1 intent thesis, aligns contested and uncontested divorces under the same standard, and provides clear guidance to practitioners and litigants on the enduring nature of the required intent. Although the Supreme Court reversed the reasoning of the lower appellate court, it affirmed the trial court’s decree on the ground that the record supported the finding that the wife’s intent met the newly clarified standard.