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Separation and Divorce

December 30, 2016 Blog

If you are contemplating pursuing a divorce, you undoubtedly have an array of different types of questions. For example, you may be wondering how a separation plays into the process of obtaining a divorce. You may wonder whether a separation can be used as grounds for divorce.

Before a discussion can be had about how separation can play a role in divorce proceedings, you need to understand how the term separation is utilized in family law in the United States. In fact, separation refers to a number of different statuses when it comes to family law generally, and divorce specifically, in the United States.

Understanding the Types of Separation

Before you can determine whether separation is grounds for divorce, you need to have a basic understanding of different types of separation when it comes to divorce law in the United States. Although each state has its own statutes regarding divorce, there is commonality between jurisdictions regarding how the term separation is utilized in divorce law.

One utilization of the term separation can best be referenced as jurisdictional separation. Some states have laws that require a couple to be separated for a specific time period before a divorce case can be commenced.

The term separation can also refer to informal separation between a husband and a wife. In this situation, spouses make the decision that they not longer can or want to live together. The informally separate from one another.

The term separation can be applied to abandonment by one spouse. There are situations in which one spouse abandons the other, leaving the couple separate as a result of that conduct.

Finally, the term separation can refer to legal separation. Some states have statutes that permit a married couple to embark on a legal separation case. Through this type of legal proceeding, a couple can obtain a decree of legal separation.

Jurisdictional Separation

Technically speaking, jurisdictional separation does not provide grounds for divorce. Rather, it is a legal requirement that must exist according to the laws in some states before a divorce case can proceed. Only a minority of states have this requirement.

Informal Separation

Informal separation oftentimes exists prior to the initiation of a divorce case. With that said, and despite the fact that it occurs commonly, this in and of itself does not provide grounds for divorce.

Separation by Abandonment

Separation caused by abandonment is a component of legal grounds for divorce. The laws in all U.S. states permit a person the ability to seek a divorce based upon an allegation of abandonment by the other spouse.

Formal Separation

As is the case with informal separation, formal separation in and of itself is not a legal ground upon which a divorce can be sought. With that noted, there are states that permit a legal situation to remain in place indefinitely. On the other hands, there are other states that set a time limit on a legal separation. When the deadline is reached, the couple must either proceed with a divorce or the legal separation is dismissed.

Of all the types of separation discussed, this is the only derivation that requires judicial proceedings. A person interested in obtaining a legal separation files a complaint or petition with the court to obtain this type of legal relief.

In a legal separation case, a court makes all of the decisions made in a traditional divorce proceeding, with one exception. In a legal separation proceeding, the marital bonds remain in force. Other orders issue from the court addressing everything from a distribution of assets and debts to addressing issues surrounding children born during the course of the marriage.

If only one party desires a legal separation, and the other spouse wants a divorce, a court is likely to deny a legal separation and proceed with a divorce. These types of issues can be more fully explained by an experienced divorce lawyer.

Retain Legal Counsel

As you contemplate pursuing a divorce, and wonder what available grounds exist in your state for marriage dissolution, your best course is to schedule an initial consultation with a skilled, experienced divorce attorney. During an initial consultation, a divorce lawyer will evaluate your situation and discuss what options are available to you. As a general rule there is not fee charged by a divorce attorney for an initial consultation.



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