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The Pre-Divorce 'Separation Period' Requirements

Erik Lanter

The Pre-Divorce 'Separation Period' Requirements

Family Law
| 5 min
6 Min

There is no law requiring you and your spouse to live together. However, marriage is a legal relationship, and living apart may have legal consequences. Even where the separation is informal, you and your spouse may still need to agree on several issues, including child custody and support, payment of bills, and spousal support.

If you cannot agree informally, you might need to file for a legal separation. In this case, just like in a divorce, you need to petition or ask the court to make orders on issues such as child custody and support, spousal support, and division of marital property. However, a legal separation is different from a divorce in that you and your spouse are still technically married.

Whether your separation is informal or legal, some states may require you and your spouse to have lived ‘separately and apart’ for a specific period before granting a divorce. However, some states, including California, do not have a required separation period; hence, you and your spouse can decide to end your marriage and file for divorce on the same day.

Why You Require a Separation Period

Even in states like California, where couples are not required to live separately before filing for divorce, the court still requires you to wait six months before your divorce is final. During this waiting period, the court may require you to live separately. However, in some states, you can continue living together as you wait for the court to dissolve your marriage.

However, just because the court does not require you to live separately does not mean that living together is a good idea. If you and your spouse have agreed to end your marriage, it is essential to start thinking about what that means, including the fact that one of you will eventually have to move out.

Even if you have a cordial relationship with your spouse, living together as you wait for divorce can complicate many things. For instance, it will complicate the division of assets as it makes the date of separation unclear. Mostly, the date of separation is useful when differentiating marital and personal property. 

Living separately during the divorce waiting period is essential to avoid property division complications, even where it is not a legal requirement. The separation period can also make it possible for you and your spouse to agree on divorce issues early, hence shortening the divorce process. 

Additionally, a separation period can be useful as a cooling-off period that allows a couple to think straight and ensures they do not make the divorce decision lightly. The period can help a couple discover that remaining married might be the best option. 

How long is the Separation period? 

How long you need to live separate from a spouse before the court grants you a divorce varies from state to state. As stated above, some states such as California do not have a required separation period. However, in states where separation is a legal requirement, the separation period is usually between six months and two years. In some states, the period is longer. 

How Do You Determine When It Has Started? 

Technically, the day one spouse moves out and starts living independently, the separation period starts. However, simply living in different homes does not necessarily mean a couple is legally separated. In most cases, the required separation period begins the day a couple agrees to end their marriage. 

In states where legal separation is a requirement before a divorce, the separation period starts when the couple files for legal separation and begins living apart. In some states, there are provisions on counting the separation period in case a couple gets back together. For instance, in some states, if you get back together for more than 90 days but later separate, you will have to start counting again from the date of the recent separation.

Conclusion

Separation laws vary from state to state. Different states also have different provisions concerning when the period starts. However, most states require a specific separation period or waiting period before granting a divorce. The fact that dissolving a marriage is not an easy decision to make highlights the need for a required separation period.

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