When Separation Starts: Supreme Court Pushes Back on Appeals Court in Lisann v. Lisann

In Virginia divorce cases, the date of separation is a critical, often outcome-defining issue. It determines when property stops being marital, affects spousal support, and frames equitable distribution. This is especially true in no-fault divorce cases, which allow divorce without proving misconduct after the parties have lived separate and apart for a required period of time. That rule comes from Virginia Code § 20-91(A)(9), which permits divorce after one year of separation, or six months in limited circumstances, so long as at least one spouse intends the separation to be permanent.

In Lisann v. Lisann, the Virginia Supreme Court addressed a key question under that statute: does the intent to permanently separate matter only on the first day of separation, or must that intent continue throughout the statutory separation period?

The parties in Lisann v. Lisann physically moved into separate residences on July 14, 2014. The wife testified that she intended the separation to be permanent from that point forward. The husband disagreed, pointing to years of continued shared activities, family vacations, overnight stays, and holidays spent together as evidence that neither party truly intended a permanent separation until December 24, 2018. After an eight-day trial, the circuit court found that the separation began in July 2014 and relied on that date when determining equitable distribution and spousal support.

The Court of Appeals affirmed in a published opinion, adopting a legal standard under which the intent to permanently separate needed to exist only at the beginning of the statutory separation period. Under that approach, later conduct and wavering intent were largely irrelevant so long as the original intent was genuine and the parties never reconciled.

On May 8, 2025, the Virginia Supreme Court rejected that reasoning. Reading Virginia Code § 20-91(A)(9) together with Virginia Code § 20-106(B)(5), which governs no-fault divorces proved by affidavit and requires a sworn statement that the parties lived separate and apart with the intent to remain permanently separated, the Court held that intent must predominate throughout the entire statutory separation period, not merely exist on day one.

The Court emphasized that intent does not require perfect consistency or the absence of mixed signals. Separation often unfolds unevenly, and spouses may still interact or explore reconciliation. The legal question is whether, viewed as a whole, the dominant intent during the statutory period was to permanently end the marriage.

Although the Supreme Court disagreed with the Court of Appeals’ reasoning, it did not reverse the result. Applying the presumption that trial courts correctly apply the law, the Court concluded that the record supported the circuit court’s finding that the wife’s intent to permanently separate predominated throughout the statutory period. As a result, the July 14, 2014 separation date remained intact.

Lisann v. Lisann clarifies that separation in Virginia no-fault divorce cases is not established by a single statement or a single day of intent. Courts will instead examine intent across the separation period as a whole. For divorcing spouses, the decision underscores that separation is measured not just by physical distance, but by sustained purpose and that courts will closely scrutinize conduct over time when determining when a marriage has legally ended.