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When is Separate Maintenance Applicable? by Ronald R. Tweel and Elizabeth P. Coughter Ronald R. Tweel began practicing with MichieHamlett in 1975. In 1979 he was appointed substitute judge for the Sixteenth Judicial District of Virginia and remained there until 2003. He is the past chair of the Family Law Section of the Virginia State Bar and of the Virginia Trial Lawyers Association. He is a Fellow of the American Bar Foundation and the Virginia Law Foundation. He was recently selected to be a member of the Virginia Bar Council. Very rarely do practitioners file a separate maintenance petition. Few of our clients have wanted to remain mar- ried and not file for divorce, even though they were in need of support. While it seems now that an action for separate maintenance, as opposed to a motion for spousal support pursuant to a divorce, is a distinction without a difference, at least one circuit court may have treated this claim as if the old common law applied. (See Cutright v. Cunningham, 19 Cir. 1C4479, 52 Va. Cir. 381 (2000), discussed below.) Today, the statutory scheme found in Virginia Code §20-107.1 applies to both actions. Such similar treatment, however, was not always the law. Elizabeth P. Coughter has been practicing law with MichieHamlett since 1983. She started her legal career as a law clerk for the Supreme Court of Virginia before entering the practice of law in the areas of family law and personal injury litigation. Today she focuses her practice on family law matters, including liti- gated divorce and custody cases. Coughter also prac- tices collaborative law in family law cases. She is past president of the Charlottesville Area Women's Bar Association, and a past member of the Virginia Women Attorneys Association Board of Directors. Prior to 1994, a separate maintenance action was not identified in state law. Va. Code §20- 107.1 reads: Upon decreeing the dissolution of a mar- riage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, and upon decreeing that neither party is entitled to a divorce, the court may make such further decree as it shall deem expedient concerning the mainte- nance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse. In 1994, however, the opening paragraph was amended to specifically provide for separate maintenance. Upon entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such fur- ther decree as it shall deem expedient con- cerning the maintenance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse. (emphasis added) This means that all of the provisions, restric- tions, and factors found in this statute now apply to separate maintenance actions. Another important aspect of separate main- tenance is that an action for separate maintenance could be maintained even after a divorce decree had been entered by a court of another state. In Newport v. Newport, 219 Va. 48, 245 S.E.2d 134 (1978), the wife, a Virginia resident, sought an award of support and maintenance in Virginia, while her husband pursued a divorce in Nevada. A Nevada divorce decree was entered prior to a ruling on the wife's action. The Nevada decree was entered without obtaining any personal juris- diction over the wife. The Supreme Court of Virginia in Newport gave full faith and credit to the Nevada decree, and recognized the "divisible divorce concept." Id. at 426. The Supreme Court in that case ruled that the legal obligation of the husband in Newport to support his wife was not extinguished by a court lacking personal jurisdiction over the wife. The Court reasoned: In summary, the duty of a husband to sup- port his wife is a moral as well as a legal obligation; it is a marital duty, in the perfor- mance of which the public as well as the par- ties are interested; it is a duty which is an incident to the marriage state and arises from the relation of the marriage; and it is an inherent right which may be asserted in a divorce suit or in an independent suit there- fore. See Hughes v. Hughes, 173 Va. 293, 4 S.E.2d 402 (1939); Capell v. Capell, 164 Va. 48 VIRGINIA LAWYER | February 2012 | Vol. 60 | FAMILY LAW SECTION

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