Legal Separation & Divorce Are Not The Same Thing, And Knowing The Difference Is Important If You’re Planning To Divorce

Categorized: Family Law

Legal Separation vs Divorce

When a couple is separated, it means that one, or both of them, have made the conscious decision to separate and remain separated permanently. However, they remain legally married while separated.

There are no procedural steps that need to be taken to legally separate, but there are conditions that must be sustained for the separation to be recognized by the courts.

Knowing what is recognized by the state as a separation is important because in many divorce cases, it is required that the couple be separated before they can file for a no-fault divorce. If the marriage has produced children, then the couple is required to be separated for one year before filing. If there are no children involved, then they only have to wait six months so long as they have an agreement resolving all of the issues.

If a couple has been separated and one spouse seeks to file for a divorce immediately, it can only be filed if it is based on a fault ground (i.e. adultery, felony, cruelty, or desertion/abandonment).

Living Requirements for Legal Separation

To be considered separated, the law requires that a couple take certain actions including, but not limited to:

  1. Living in separate residences.
  2. Sleeping in separate beds.
  3. Separating their finances.
  4. Avoid doing things together (e.g. eating together, shopping, buying groceries for one another, etc.)
  5. Avoid sexual contact and intimacy.
  6. Stop wearing wedding rings.

If you separate and must continue to reside under the same roof for financial reasons or otherwise, see our “Separate In Same Household” checklist by visiting this link.

Because couples must be separated for a period of time before a divorce can be granted, it is important that both spouses understand what counts as being separated under the law. If the requirements are not met, then the period in question will not count as time separated which can cause more unwanted tension in an already delicate time.

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