Definition of Separated in an Uncontested Divorce
The divorce laws in some states require a period of separation before a case is filed or granted (depending on the specific provisions of the law). A separation period is required in both contested and uncontested divorces in these jurisdictions. If you are planning to divorce, and you and your spouse believe the case will be uncontested, you need to understand the separation requirement if one exists in your state.
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Types
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Different types of separation definitions are used in divorce law. First, there is physical separation. In states that require physical separation, the parties literally need to reside at different locations for a set period of time. Second, separation is defined in some states as an end to the intimate relationship associated with marriage even if the spouses reside under one roof.
Time Frame
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States that require one type of separation or another before a divorce is filed or granted use different time frames for this period apart. Typical times frames included in the laws of states that require separation typically run from six months to one year. There is no national standard because divorce is a matter of the laws of individual states.
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Misconception
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A common misconception is that a couple must obtain a court-ordered legal separation before pursuing a divorce. A court-ordered legal separation--as opposed to the physical or intimate separation required pursuant to some divorce laws--is a distinct legal proceeding. A legal separation case is pursued in lieu of and not as part of a divorce case.
Function
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The function of the separation requirement is to fulfill the threshold requirements of a no-fault divorce. In order to pursue a no-fault divorce, you demonstrate irreconcilable differences and no reasonable hope for reconciliation. Irreconcilable differences are differences between the spouses so severe that the goals of marriage cannot be met. Separation--whether physical or in regard to the lack of intimacy typically associated with marriage--demonstrates both irreconcilable differences and the lack of reasonable prospect for reconciliation.
Expert Insight
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Even an uncontested divorce potentially can become a complex legal matter. Therefore, even if you anticipate a fairly smooth divorce process, seriously consider retaining the services of an attorney. Both the local and state bar associations maintain directories of attorneys in different practice areas, including divorce law. Contact information for these organizations is available through the American Bar Association:
American Bar Association
321 N. Clark St.
Chicago, IL 60654-7598
312-988-5000
abanet.org/barserv
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