Virginia Henrico County Separation Divorce Lawyers Attorney

Virginia Henrico County Separation Divorce Lawyers Attorney

by

Atchuthan Sriskandarajah

CECIL MCGOWAN HOOKER v. HIROKO TAKEMURA HOOKER

Supreme Court of Virginia

January 20, 1975

Facts:

Cecil McGowan Hooker, the appellant husband sought a divorce on the ground that they had lived separate and apart without any cohabitation and without interruption since August, 1970. Mrs. Hooker filed an answer and cross-bill denying Hooker’s allegations and asking for a divorce on the ground of constructive desertion. The lower court held that there was no expressed intent by Hooker to separate and no action taken by him from which such intent could logically be inferred until his letter was written to the Richmond attorney for the purpose of instituting divorce proceedings. Accordingly, the chancellor ruled that Hooker had failed to prove that he was entitled to a divorce under the provisions of Code 20-91(9). Hooker appeals from the decree entered December 10, 1973, which denied a divorce to either party, but awarded Mrs. Hooker temporary alimony and counsel fees.

Issue:

Whether, when both parties are sane, an intent to separate must be shown in order to establish the commencement of the two year statutory period required for a

divorce

under the provisions of Code 20-91(9)?

Discussion:

This court held that where both parties are mentally competent, as in the present case, as a prerequisite for a divorce under Code 20-91(9), there must be proof of an intention on the part of at least one of the parties to discontinue permanently the marital cohabitation, followed by physical separation for the statutory period. Hooker, having failed to prove an intention to terminate the marriage before 1972, was not entitled under the statute to a divorce in November, 1972, based upon mere separation, without cohabitation and without interruption, that commenced in August, 1970. The court found that the parties had lived separately for most of the marriage because the husband worked overseas and was only home for about 30-60 days per year. This court found that divorce was not proper because the husband conceded that there was no expressed intent by the husband to separate and no action taken by him from which such intent could logically be inferred at that time that he left. Because the statutory period had not passed, this court affirmed the judgment.

Conclusion:

This court hence affirmed the decision of the lower court that found that the husband failed to prove that he was entitled to a divorce from the wife but awarded the wife temporary alimony and counsel fees.

Disclaimer:These summaries are provided by the SRIS Law Group. They represent the firm s unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the

SRIS Law Group

. The SRIS Law Group has offices in

Virginia

, Maryland, Massachusetts, New York, North Carolina & California. The firm handles criminal/traffic defense, family law, immigration

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