Family & Divorce Law Services

How Can You Prove Reconciliation?
By Lisa LeFante and Nathan Lashley

There are two lines of cases regarding the resumption of marital relations used to determine when a reconciliation has occurred. The first line of cases deals with factual scenarios where the parties are in virtual agreement as to the evidence of reconciliation and the question presented is whether the parties hold themselves out as husband and wife. In these cases, the mutual intent of the parties is irrelevant and requires the presence of "substantial indicia of cohabitation as husband and wife." When such evidence exists, the court may make a determination on the issue as a matter of law. Schultz v. Schultz, 107 N.C. App. 366, 369, 420 S.E.2d 186, 187 (1992). The second line of cases involves conflicting evidence such that the subjective mutual intent of the parties becomes an essential element. Fletcher v. Fletcher, 123 N.C. App. 744, 748, 474 S.E.2d 802, 805 (1996).

N.C. Gen. Stat. ' 52-10.2 provides that the "[r]esumption of marital relations" shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations. Our courts have defined the "totality of the circumstances" as related to reconciliation as a standard "which focuses on all the circumstances of a particular case, rather than any one factor." Fletcher v. Fletcher, 123 N.C. App. 744, 750, 474 S.E.2d 802, 806 (1996) (citations omitted). Consequently, isolated factors no longer control and the court must resolve the issue by evaluating "all the circumstances of a particular case." Id. The Fletcher court provided a list of non-determinative factors that include whether the parties had: (1) moved back in together; (2) shared household chores; (3) indicated to friends and/or family members that their problems had been resolved; (4) accompanied each other to public places so as to hold themselves out as husband and wife; and (5) engaged in sexual intercourse. Id. at 750-50, 474 S.E.2d at 806-807.

In Schultz, the parties separated in 1984 and entered into a consent judgment for, inter alia, alimony. On June 11, 1990, with the plaintiff's consent, the defendant moved back into the marital residence and brought his pets, his belongings, his automobile and lived there continuously for four months. After four months, the plaintiff asked defendant to leave the house, but he refused. Defendant moved the trial court to modify the consent judgment based upon the reconciliation of the parties. Plaintiff obtained a show cause order for contempt for defendant's failure to pay alimony while the parties were living together. The trial court found that no reconciliation occurred and held the defendant in civil contempt for failing to pay alimony.

In reversing the trial court, the Court of Appeals analyzed the case under the first method due to the largely undisputed facts. The Court of Appeals recognized that on defendant's return to the home, he kept his automobile at the residence, moved his belongings in, paid utility bills and other joint debts, mowed the lawn and kept his pets at the residence. Additionally, plaintiff was doing defendant's laundry, the parties went shopping together and dined out together, filed joint tax returns together and engaged in sexual relations once per week for two or three months after defendant returned to the home.

Likewise, In Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), the wife returned to the marital residence one month after the parties entered into a separation agreement and consent order. The wife remained in the home until husband's death some eight months later. There was also ample evidence to the effect that the parties occupied the same bedroom and slept in the same bed together, that husband told friends that they had worked out their problems. The parties also told their respective attorneys to stop the sale of their jointly owned property and the parties were making plans to retire and open an antique shop together. Based upon this largely undisputed evidence, the Supreme Court held that the parties had, indeed, reconciled as a matter of law.

In Fletcher, the undisputed facts were that the parties separated in August 1993 and entered into a separation agreement in October 1993. On December 5, 1993, plaintiff returned to the marital residence, bringing with her some toiletry items and a work outfit. The parties spent approximately four hours each night together along with their sons for five days. On one occasion, plaintiff returned to her residence for more work clothes. On December 11, 1993, defendant asked plaintiff to leave, stating that he wished to be with his girlfriend. During the 6 day period that plaintiff was staying with defendant, the parties engaged in sexual relations three or four times. Plaintiff filed an action to rescind the separation agreement based upon the parties reconciliation. The trial court found that the parties had reconciled and granted plaintiff's requested relief.

In reversing the trial court, the Court of Appeals held that based upon the totality of the circumstances, the six-day period that plaintiff stayed at defendant's house did not constitute "substantial objective indicia" sufficient to make the conclusion that plaintiff and defendant had reconciled as a matter of law. The court noted that there were substantial facts absent from this which were present in Schultz and Adamee, to wit: plaintiff never "moved" back into or resumed cohabitation in the marital home, but instead maintained her own separate residence at which she kept her possessions and from which she removed only work clothes; the time period was less than one week compared to the four and eight month periods in Schultz and Adamee respectively; the parties never resumed sharing household chores; the parties never went out in public together; ; and the parties never indicated to family or friends that they had resolved their differences. To the contrary, the parties continued to abide by the separation agreement by distributing property and relied upon provision regarding custody of the children. Further, the court noted that an indication that no reconciliation had occurred was that defendant told plaintiff to leave because he wanted to be with his girlfriend.

More recently, in Lange v. Lange, 164 N.C. App. 779, 596 S.E.2d 905 (2004) (unpublished), the parties entered into a Deed of Separation that provided, inter alia, for plaintiff to move back into the marital home in separate living quarters downstairs from defendant and their child. The separate living quarters had a bedroom, living room, kitchenette, a half bath and an outside shower. The door between the separate quarters and the rest of the house was locked and plaintiff was prohibited from entering the upstairs except to shower and by special arrangement. Plaintiff paid certain household bills in lieu of rent, as provided in the Deed of Separation. Additionally, plaintiff performed many of the same household chores as he did during the marriage, including mowing the yard, maintenance of the vehicles, the boat, exterior of the home, and the pets. The parties also filed a joint tax return. The parties also attended some events together, such as a super bowl party, dinner at Pizza Hut, to the courthouse unrelated to the domestic case, an anniversary party and to get ice cream.

The trial court concluded that the parties did not reconcile and the Court of Appeals affirmed, noting that the neither party led family or friends to believe that they had reconciled, and in fact plaintiff explicitly told some of his friends that he had not reconciled. Thus, based upon the totality of the circumstances the Court of Appeals affirmed that there was no reconciliation.

Copyright © 2005 Bender Law Offices P.C., All Rights Reserved.
Divorce Lawyers, Separation Attorneys, Family Law, International Divorce, Mediation, Agreements, Child Custody, Court Services, Alimony, Domestic Violence, Child Support, Property Distribution, Spousal Support

6608-204 Six Forks Road . Raleigh, NC 27615 . USA

Phone: 919-870-9600 . Fax: 919-847-2473