Can You Ever Get an Automatic Divorce after a Long Separation?

• Is divorce ever automatic?
• Debunking the automatic divorce myth
• Can I convert a long-term separation to a divorce?
• Legal steps to divorce after separation
• Types of divorce
• Table: Breakdown of types of divorce
• FAQ about divorce after a long separation

While it may seem plausible to assume that after years of separation, the law would step in to sever the marital bond automatically, this is not the case. The law makes no such provision. Yes, you heard right: No period of separation, no matter how extended, will automatically translate into a divorce. 

Misunderstandings like this can lead to unnecessary complications and legal quagmires. Imagine believing you’re divorced only to discover years later that you’re still legally married. That’s a situation nobody wants to be in. 

Trial separation and legal separation are good options for some couples. It gives them time to figure out if they really want to get divorced – a permanent process that can also be costly and stressful. 

Some married couples who have been living separate lives wonder if they could automatically change their marital status by virtue of the fact that they’ve been apart for so long. 

Divorce is never automatic

Divorce is never automatic. Depending on the intricacies of your situation, it could take months or even years to complete divorce proceedings. Unfortunately, some separated couples are under the misconception that they can get a quick divorce with no legal steps necessary. In reality, this is impossible.

Regardless of what type of divorce you’re looking to pursue, you must go through the legal system to get one. Not only do you need to draft and file a petition for a divorce, but if you want an uncontested divorce, both parties must agree on all parting matters. 

If the parties do not agree on everything, the divorce becomes a contested one. A contested divorce requires more paperwork and court filings than an uncontested divorce.

Debunking the automatic divorce myth

No amount of time apart will automatically dissolve your marital bond. The law requires formal action to terminate a marriage legally. 

The origins of this misconception may stem from the understandable confusion between the terms separation and divorce. While both imply a parting of ways, they are vastly different in the eyes of the law. Separation, even for years on end and even if formalized with a binding agreement, is not a legal dissolution of marriage. 

Can I convert a long-term separation to divorce?

Maybe. It depends on which state you live in when you file for divorce. Almost all states allow for legal separation in some form. Only Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not allow legal separations.

In the states that allow legal separation, you may be able to convert your legal separation to a permanent separation or divorce. In California, for example, you can enter into a legal separation by negotiating a separation agreement with your spouse. After some time, if you decide to get a formal divorce, you can convert your legal separation into a divorce proceeding. You'd still need to follow the state's divorce process, but you'd save a bit of time and cost by converting your separation to a divorce.

Not every state with legal separation allows you to transition from that to divorce. In states that don’t allow the conversion, you'd need to start an entirely new legal proceeding to initiate divorce. So, make sure you understand your legal rights and the divorce laws in your state.

Legal steps to divorce after separation

Before we get into the standard steps, it’s vital that you know and understand your state’s divorce laws. 

Each state has specific divorce laws. Some states require a period of separation before filing for divorce, and some require you to live in the state or county where you’re getting divorce for a few months before filing. 

Assuming you meet those requirements, here are the basic steps to get a divorce after a long separation:

1.  File a petition for divorce. This is the legal document that formally requests a divorce. It outlines your proposed arrangements for things like property division, child custody, and spousal support. Filing a petition is not optional. Read: What Are the Divorce Petition Filing Rules in My Area?
2.  Pay a filing fee. Every state charges a filing fee for your divorce petition. This usually falls around $300 to $400. You’ll need to pay this when you file your petition.
3.  Serve your spouse. This process involves delivering the divorce petition to your spouse in a legally recognized way, even if they know you’re filing the petition and agree with it.
4.  Wait for your spouse’s response. By law, you’ll need to give your spouse time to respond to your petition. This is usually around 20 days after they’ve been served. They can agree with your petition, contest it, or not respond at all. Their reaction will determine the next steps in your divorce process.

This is where paths diverge. If you and your spouse agree on all matters, you may proceed with an uncontested divorce. If not, you’ll have a contested divorce, which could involve negotiation, mediation, or even a court trial.

Regardless of the path your divorce takes, a judge must approve the final divorce decree. Your divorce is not final until the judge signs off. 

Read a comparison of legal separation vs. divorce

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Types of divorce

Although divorce doesn’t come automatically after a lengthy separation, that doesn’t mean you must necessarily hire a divorce attorney for representation in court or even legal advice. 

Summary dissolution

If you're looking to get divorced quickly, there are a few possible avenues you could take. In some states, summary dissolution of marriage is an option. This is an expedited process that allows spouses to get divorced without any court hearings or trials. 

To qualify for summary dissolution, the couple must meet certain criteria, including having been married for a short period of time (usually less than five years), having no joint debts, and having no minor children together. If all of these conditions are met, the divorce may be completed in as little as six months.

As straightforward as it may seem, summary dissolution requires agreement between spouses. Both parties must agree on all aspects of the divorce. This level of consensus can be hard to achieve.

Pros and cons of summary dissolution

True default divorce

A more widely available option is true default divorce. This allows people to get divorced even if their spouse does not respond to the initial filing paperwork. However, this route only works if the petitioning spouse can prove to the court that the other spouse received notice of the divorce and decided not to respond or participate. It may require posting notice of the divorce in the newspaper in addition to personally serving the divorce papers on the other spouse. The court will review the paperwork and grant a default judgment if everything looks valid. Usually, this takes about three months.

A true default divorce is not a shortcut or an easy way out. There are still legal processes to follow and paperwork to complete. Any errors or omissions in these processes could lead to delays or complications. If the non-responding spouse cannot be located or is deliberately avoiding service, this can complicate the process and potentially delay the divorce. 

Pros and cons of true default divorce

Uncontested divorce

Uncontested divorces allow couples who agree on major divorce settlement issues (marital assets, property division, spousal support/alimony, child support, and child custody, to name a few) to obtain a divorce without having to go through mediation or many court proceedings. This is often much faster than traditional litigation since both parties are in agreement. 

Typically, it takes less than two months to complete an uncontested divorce, provided you've met the residency and waiting period requirements for your state.

An uncontested divorce sounds simple, but there are still legal procedures that must be followed correctly. Errors in paperwork or failure to comply with court requirements could lead to delays. And while an uncontested divorce can be less expensive than the alternative, there are still costs involved, such as court filing fees and evaluations.

Pros and cons of uncontested divorce

Contested divorce

This type of divorce occurs when spouses can’t reach an agreement on one or more key issues. To get through this process, you’ll most likely need to attend multiple rounds of mediation and possibly even a trial. The goal is to agree on as much as possible so there’s less for the court to consider. When you decide on matters at mediation, you keep control. It’s not the smoothest journey, but sometimes, it’s the only path forward.

The biggest challenge a couple faces in a contested divorce is emotion. Divorce is hard enough without the added stress of a legal battle. This can be an extremely emotional process.

Time is another challenge, making contested divorces one of the lengthiest options. Time is needed for discovery, mediation, and possibly even a trial. It’s a marathon, not a spring.

A contested divorce is also expensive. Legal fees can add up quickly, especially if the case goes to trial.

Pros and cons of contested divorce

Collaborative divorce

A collaborative divorce involves both parties working together alongside their respective lawyers and other professionals to reach agreements on all issues. It’s a path that requires cooperation and compromise, but it’s one that can lead to a more amicable outcome.

However, both parties must be willing to negotiate and work together in good faith. This can be difficult if there is a high level of conflict or mistrust. It’s also a process that still involves a decent amount of expense, even though it’s less costly than a contested divorce. 

Pros and cons of collaborative divorce

Table: Breakdown of all types of divorce

Although no magic wand can be waved to get you an automatic divorce decree, some paths to divorce are easier than others. 

FAQ about divorce after a long separation

Can I use my separation as grounds for divorce?

In many jurisdictions, if you and your spouse have been living separately for a certain period, you may use this as grounds for divorce. However, the specifics vary depending on your location and circumstances. It’s not a one-size-fits-all solution. 

Keep in mind that using separation as grounds for divorce doesn’t necessarily expedite proceedings. Divorce is a process, often more a marathon than a sprint. Factors such as the complexity of your case, the cooperation or lack thereof between spouses, and even the backlog of your local courts can influence the duration.

How long will my divorce take?

That’s the million-dollar question. Unfortunately, there’s no definitive answer. 

The length of the divorce process is influenced by many factors, including whether it’s contested or uncontested, the complexity of assets to be divided, and issues related to child custody. An uncontested divorce might wrap up in a few months, while a contested divorce can stretch into years. 

What if my spouse is resisting divorce?

If your spouse refuses to sign the divorce papers, you may still be able to proceed with a divorce. In cases where a spouse cannot be located or refuses service, jurisdictions have different rules allowing you to complete service by publication or posting. It might feel like you’re stuck between a rock and a hard place, but there are options.

Hello Divorce helps clients in all kinds of domestic situations. View our comprehensive plans to find the one that fits your specific needs and goals, or schedule a free 15-minute consultation to speak with an account representative about your options.