VA Code Section 20-107.3 Interpretation

Code 20-107.3 provides that property is to be classified as of "the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent." Thus, there must not only be a physical separation but also "proof of an intention on the part of at least one of the parties to discontinue permanently the marital cohabitation." Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975); see also Luczkovich v. Luczkovich, 26 Va. App. 702, 713, 496 S.E.2d 157, 162 (1998). Matrimonial cohabitation consists of more than sexual relations. It also includes the performance of other marital duties and responsibilities. See Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986); see also Dexter v. Dexter, 7 Va. App. 36, 44, 371 S.E.2d 816, 820 (1988).