Are We Separated?

I often see confusion among clients about the requirement that parties be "separated" for sixty days before they can be divorced.

The statute that sets out the requirements for the parties to get divorced requires that "No decree of dissolution of marriage shall be entered until the parties have lived separate and apart for 60 days."

Many people get very confused by the "lived separate and apart" portion of the statute.  They incorrectly believe that it means that they cannot divorced until one of them moves out of the marital residence.  Admittedly, that is a pretty reasonable assumption based on the plain language of the statute.  However, the statute goes on to say that "[l]iving separate and apart shall include living under the same roof without sexual cohabitation."  In other words as long as you and your spouse are not engaging in sexual relations, you can be considered "separated" for purposes of securing a divorce.

This can be very important in a situation where the parties do not have sufficient means or resources to actually establish separate residences.  While this may solve the problem of how a couple can get a divorce without someone being immediately forced out of the house, it can create a whole litany of other problems.  First, it can create a powder keg situation.  Obviously, if you are getting a divorce, you and your spouse are not exactly getting along.  Being forced to remain together can increase that stress.  This stressful situation could create more tension (and litigation) driving up costs and defeating the whole point of continuing to reside together.  It could even explode into a domestic violence situation.

Although no one actually has to move out in order to be separated for divorce purposes, it may be better if one party does vacate the residence.  Explore your options and discuss it with your attorney before deciding what is best for you.

Photo courtesy of Justin Kern

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