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Bennington v. Bennington - 56 Ohio App. 2d 201, 381 N.E.2d 1355 (1978)

Rule:

Ohio Rev. Code Ann. § 3105.01(K) provides grounds for divorce when a husband and wife have, without interruption for two years, lived separate and apart without cohabitation. 

Facts:

The wife, Mary Bennington, suffered a stroke and was disabled. The husband, Larry Bennington, moved out of the house and into a van located adjacent to the house. His primary reason for moving into the van was that Mary kept the house at about 85-90 degrees. Mary later filed an action for alimony, claiming gross neglect of duty and abandonment. Larry filed a counterclaim for divorce, alleging gross neglect of duty and extreme cruelty. He asserted as grounds for divorce the fact that the parties lived separate and apart for at least two years without cohabitation. The trial court granted the husband a divorce. 

Issue:

Can the time that Larry lived in the van adjacent to the house be used as a ground for divorce?

Answer:

No.

Conclusion:

The court found that the trial court erroneously included the time that Larry lived in the van adjacent to the house as part of the two-year period, as the parties were not living "separate and apart" during that time. During that time, there was no cessation of marital duties and relations between the wife and husband. While there was a lack of cohabitation, there was no living "separate and apart" as contemplated by Ohio Rev. Code Ann. § 3105.01(K). The court further found that the trial court did not err in ordering the parties' real estate and automobile sold.

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