A complaint for legal separation is often met with a counterclaim for divorce. The trial court, when faced with these requests for relief, must hear and weigh the evidence to determine if one or both parties have presented sufficient grounds for the relief sought. The court must also determine which relief is most appropriate under the circumstances of the particular case.
In a Coshocton county, Ohio case known as Brown v Brown, wife filed for a legal separation and husband counterclaimed for divorce. As a statutory ground for divorce, husband asserted wife’s refusal to have sex with him on a regular basis amounted to extreme cruelty. Extreme cruelty has been defined as acts and conduct which destroy the peace of mind and happiness of one of the parties to the marriage and make the marital relationship intolerable to that party.”
Husband, although dissatisfied with the frequency of the parties’ sexual relations, testified he still loved his wife. Husband preferred to be divorced, however, if they were going to live separate and apart. The court held that that the lack of frequent sexual relations did not render the marital relationship so intolerable to husband as to justify a divorce.
Wife’s ground for seeking a legal separation was that parties were incompatible. Incompatibility is also grounds for divorce so long as it is not denied by the other party. When identical grounds are alleged and proven, the court has discretion to determine which relief, legal separation or divorce, is most appropriate.
The parties in Brown had been married for about forty one years. Both spouses had significant health problems. Husband was retired and on social security disability. Wife, while working part time relied, on husband’s former employer’s health insurance plan for coverage and was not yet eligible for Medicare. The trial court granted the legal separation and denied husband a divorce. While courts today generally grant a divorce when one party desires it, the Brown court reasoned that wife needed to remain on husband’s health plan. A divorce would jeopardize wife’s continued health coverage.
Parties have often elected to separate rather than terminate their marital status so as to continue health coverage. Many plans today, however, terminate eligibility for a spouse if there has been a legal separation. Presumably the evidence in Brown convinced the court that coverage would continue if a legal separation was granted. There was also no mention of possible continued coverage under COBRA.