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When are Parties Living Separately and Apart for Purposes of Divorce

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  • 10-15-2015, 04:01 AM
    clevelandox
    When are Parties Living Separately and Apart for Purposes of Divorce
    My question involves a marriage in the state of:Ohio

    Facts: Husband moved out from marital residence in April and filed for divorce. Wife does not agree to incompatibility. No grounds otherwise. In July, Husband and Wife had sexual relations with each other, however, Husband has never moved back into the marital residence.

    Question: To qualify under RC 3105.01(J), will the time for the one year period be from when he first moved out of the residence, or has be "reset" the time by sleeping with her?
  • 10-15-2015, 08:14 AM
    Ohiogal
    Re: Definition of Cohabitation to Meet Separate and Aparty for One Year
    He will not qualify for separate and apart as he already filed for divorce. And he had to live separate and apart with no sex between the two for a year PRIOR to filing for divorce.
  • 10-15-2015, 12:52 PM
    clevelandox
    Re: Definition of Cohabitation to Meet Separate and Aparty for One Year
    Good point. He filed expecting her to agree to incompatibility. She is not. So you are saying that even if the trial is set out a year after he moved out, he would not be able to establish separate and apart since he filed before the one year.

    Do you happen to have a case that says that, because I don't think the statute is clear on that.

    Thank you
  • 10-15-2015, 01:38 PM
    Ohiogal
    Re: Definition of Cohabitation to Meet Separate and Aparty for One Year
    I am an attorney in Ohio who practices in DR. At the date of filing, the grounds have to exist. That is fact. At the date of filing, living separate and apart was not a ground that EXISTED. Hence, he doesn't get a divorce on that ground.
  • 10-16-2015, 08:23 PM
    clevelandox
    Re: Definition of Cohabitation to Meet Separate and Aparty for One Year
    Thank you.

    So if he withdraws his complaint, does he have to wait to the day he moved out or the last time they slept together?
  • 10-17-2015, 03:26 AM
    Ohiogal
    Re: Definition of Cohabitation to Meet Separate and Aparty for One Year
    The last time they slept together begins the clock for separation from bed and board. And it restarts EVERY TIME they sleep together.
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