How Can You Prove Reconciliation?

Reconciliation of Marriage means that the parties to the marriage started to live separate and apart and at least one of them intended that the separation would be permanent but after that time the parties resumed the marital relationship. The North Carolina General Statutes §52-10.2 defines resumption of marital relations as follows: “Resumption 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.” While it sounds like it should be easy to prove reconciliation, it isn’t always clear because the definition of “the marital relationship” is not clear.

There are two lines of cases regarding what it means to resume marital relations. 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. Apparently, holding yourselves out as husband and wife involves a bit more than just living together. There has to be “substantial indicia of cohabitation as husband and wife.” In other words, were they just roommates or were they back together as a married couple? When such evidence exists, the court may make a determination on the issue as a matter of law.

The second line of cases involves conflicting evidence such that the subjective mutual intent of the parties becomes an essential element. So what does the subjective intent of the parties mean? Well, it means what did the parties each think they were doing? There is a partial list of things that look like reconciliation but it really depends on the facts of each case.


In the Schultz case, 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,

  1. he kept his automobile at the residence,
  2. moved his belongings in,
  3. paid utility bills and other joint debts,
  4. mowed the lawn and
  5. kept his pets at the residence.
  6. plaintiff was doing defendant’s laundry,
  7. the parties went shopping together
  8. dined out together,
  9. filed joint tax returns together
  10. engaged in sexual relations once per week for two or three months after defendant returned to the home.

In Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), Based upon this largely undisputed evidence, the Supreme Court held that the parties had, indeed, reconciled as a matter of law when:

  1. the wife returned to the marital residence one month after the parties entered into a separation agreement and consent order.
  2. the wife remained in the home until husband’s death some eight months later.
  3. the parties occupied the same bedroom and slept in the same bed together,
  4. that husband told friends that they had worked out their problems.
  5. the parties also told their respective attorneys to stop the sale of their jointly owned property
  6. the parties were making plans to retire and open an antique shop together.


In Fletcher v. Fletcher, 123 N.C. App. 744, 750, 474 S.E.2d 802, 806 (1996) , 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.

  1. plaintiff neve”moved” back into or resumed cohabitation in the marital home,
  2. plaintiff maintained her own separate residence at which she kept her possessions and from which she removed only work clothes;
  3. the time period was less than one week compared to the four and eight month periods in Schultz and Adamee
  4. the parties never resumed sharing household chores;
  5. the parties never went out in public together;
  6. the parties never indicated to family or friends that they had resolved their differences.
  7. the parties continued to abide by the separation agreement by distributing property and relied upon provisions regarding custody of the children.
  8. 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.

In Lange v. Lange, 164 N.C. App. 779, 596 S.E.2d 905 (2004) (unpublished), The trial court concluded that the parties did not reconcile and the Court of Appeals affirmed, noting that:

  1. the parties entered into a Deed of Separation that provided, inter alia, for plaintiff to move back into the marital home
  2. the plaintiff had 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.
  3. 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.
  4. the parties also filed a joint tax return.
  5. 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.
  6. neither party led family or friends to believe that they had reconciled
  7. plaintiff explicitly told some of his friends that he had not reconciled.

If you are wondering whether you have reconciled, make a list of what you and your spouse did or did not do and compare your facts to the above cases. While each situation is different, the list should provide some guidance.