Is Separation Required before Divorce?
Once you've made the decision to end your marriage, you probably want to get on with it. However, you'll find that the divorce process in your state imposes certain requirements before you can get your final divorce decree. Is a trial separation or a legal separation one of those requirements? It depends on where you live.
In this article, we examine separation before divorce — and how to know if separation is required before divorce in your state.
Your state requirements
Each state has its own rules about whether you must be separated before you can begin divorce proceedings or obtain your divorce decree. Not only that, but states require a specific period of time you must be separated first — and that period of time is not uniform across the country. Thus, the best way to find out your specific state requirements is to research them.
But first, take note of whether you live in a fault-based divorce state or a no-fault divorce state. This may affect the grounds for divorce you use ... and the grounds you use can impact whether separation is required.
Fault-based divorce states often don't require married couples to be separated before they divorce. Why? For one, if you need to exit a marriage due to a “fault” in your spouse such as domestic abuse, the state may recognize that the divorce should not be delayed.
Other faults recognized in these states include adultery, physical confinement, and abandonment.
Dissolution of marriage is granted in no-fault divorce states on the grounds of “irreconcilable differences” or an “irretrievable breakdown of the marriage.”
Some no-fault divorce states require you and your spouse to be separated for a certain amount before they permit a no-fault divorce to advance to a divorce decree. Others don’t require separation before granting a divorce.
Examples of separation requirements
If you live in a no-fault divorce state, take note of the pre-divorce separation rules for your state.
Georgia: In Georgia, you can get a no-fault divorce, but you must be separated from your spouse prior to filing. This could mean you actually live separately, but it could also mean you live under the same roof but have different bedrooms.
North Carolina: In the no-fault state of North Carolina, you can file for a divorce as long as you have lived apart from your spouse for one year or more without cohabitation.
California: If you live in California, separation is entirely unnecessary before seeking a divorce. Even though California only allows no-fault divorces, you and your spouse can live together leading up to its finalization.
Which states have a separation requirement?
At the time of this writing, the following states imposed a separation requirement on residents before permitting divorce proceedings or granting a dissolution of marriage:
- New Jersey
- New York
- North Carolina
- South Carolina
- Washington, D.C.
If you’re filing for divorce, take note of the separation requirement. If you see your state on this list, it is especially important that you find out what separation requirements married couples must follow before a divorce decree is granted. Bear in mind, too, that laws change constantly with new elections, so it’s always possible that a state that does not require separation today may require it tomorrow.
Date of separation
The duration of your marriage can play a part in determining how much alimony or spousal support you receive or pay as well as how your marital property is divided. To properly calculate a spousal support amount, you should be able to identify your precise date of separation.
The date you separate from your spouse can also affect how long you must wait to file for divorce.
As previously mentioned, in North Carolina, you must be fully separated from your spouse for an entire year before filing for a divorce. In this situation, separation means living in separate homes or apartments. But when did the separation actually begin? Again, this depends on the rules of the state.
Most states do not require separation before granting a divorce decree, but some do if you are seeking a no-fault divorce – and some may even require separation in the case of a fault divorce. Visit your county's court website or courthouse to determine your area's rules.
How to get more answers
Whether you live in a no-fault state or a fault-based state, separation requirements vary depending on your location. Visit your local or state government website to learn the precise guidelines surrounding separation before divorce.
At Hello Divorce, in addition to providing online divorce services and a host of free resources, we can help answer questions you might have about separation and divorce. Paid members can contact their account coordinators. If you aren't a paid member at this time, try a 15-minute free call.
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