If your state accepts separation as grounds for divorce, this is one of the easiest grounds on which to file, because it is usually indisputable. In most cases, one spouse stays in the marital residence and the other moves elsewhere. You don’t have to go to excessive lengths to prove your spouse guilty of any particular misconduct. However, you can’t separate and file for divorce a week later. All states require that you remain separated for a while before you can file.
Definition of Separation
Some states, such as Virginia and Illinois, do not require you and your spouse to take up separate residences to begin your separation. If you remain under the same roof, however, you must cease marital relations and essentially live as roommates. You must maintain separate bedrooms and confine your contact to common areas of your home, such as the kitchen. Even then, your contact should be in passing, not taking meals together. Your separation begins on the date you start living this way. If one of you moves out, that’s your beginning date. If you reconcile, even for a night, most states require that you start the count all over again.
Separation as a No-Fault Ground
Most states consider separation a no-fault ground for divorce. When you and your spouse part ways, it’s usually an acknowledgment by both of you that your marriage is over. However, you must still establish that there’s no hope of reconciliation by remaining apart. This time period ranges from six months in Louisiana and Montana to a matter of years. For example, in Hawaii and Pennsylvania, you must remain separated for two years. In Rhode Island and Texas, it is three years, and in Idaho, you must stay separated for five years. Some states, like Illinois, Vermont and the District of Columbia, allow you and your spouse to mutually waive the statutory time period and file for divorce after six months.
Read More: How to File Separation Papers
Separation as a Fault Ground
Separation is generally not a fault ground unless one spouse opposes it. When this occurs, most states refer to it as either abandonment or desertion. There’s usually still a time requirement, however. This is generally a year, such as in Connecticut, Utah and Illinois, but the requirements vary from state to state. New Hampshire calls this fault ground the “unexplained absence” of your spouse and he must remain away for two years. In Arkansas and Nevada, separation is both a fault and a no-fault ground.
Filing for Divorce
After you’ve met the separation requirement for your state, you can’t automatically be divorced. You must then file for divorce. Some states have waiting periods between the time you file and the time you receive your divorce, even after you’ve lived separately for a significant period of time. This can be as short as a month in Alabama to three months in Washington and six months in Louisiana. A few states, such as Arkansas, waive the waiting period if you’ve already lived separately long enough to qualify for this ground.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.