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SEPARATION BEFORE DIVORCE

Each jurisdiction in the United States has its own grounds for divorce. Although living apart is not grounds for a divorce in many states, several states require that the couple live apart for a specific amount of time before the paperwork can be filed or the divorce is granted.

Living separately can affect the property division. Property and debt acquired while living separately is classified differently, based on whether a spouse has what is called the intent to end the marriage. For example, in community property states, all property and debt acquired before this intent to end the marriage remains community property; however, when one of the spouses has the intent to end the marriage, then all property and debt acquired thereafter is separate property. Other states consider property and debt acquired while merely living apart to be separate property, regardless of the spouses' intent. Still other states consider all property and debt to be marital property until the divorce Complaint or Petition is filed.

Depending on the state, a no-fault divorce can be granted on grounds such as irretrievable breakdown or incompatibility, where neither spouse is responsible for the failure of the marriage. On the other hand, in fault divorces one party asks for a divorce because he or she claims the other spouse did something wrong that justifies ending the marriage.

Understanding No Fault Divorce

Every state permits no-fault divorce. When the spouses mutually agree that the marriage should end, a no-fault divorce permits the couple to obtain a divorce easily. In order to obtain a no-fault divorce in some states, the parties provide information regarding incompatibility or why the spouses have changed, grown apart, or have irreconcilable differences. If a state requires a separation period, either or both spouses may be required to bring a witness to testify that the parties have been living apart for the required time or simply stating the separation period within the signed divorce papers.

Irretrievable Breakdown

In the United States, several states allow spouses to divorce if they are no longer willing to live with one another. However, some states use different terminologies for a marriage that breaks down. The cause of the breakdown is legally termed as irreconcilable differences or incompatible of temperament. This breakdown occurs through no fault of the spouses, without blame to one another, and commonly represents grounds for divorce. Regardless of the terminology used, all states fundamentally allow parties to divorce if the marriage breaks down and the couple agrees that the marriage will not work. In order to attain a divorce on grounds that the marriage is over, the couple is required to prepare an affidavit that the marriage is irreparably broken and sign it under oath. An alternative to a sworn statement is to agree in writing that the marriage is broken beyond repair.

Separation Before Divorce

Spouses living apart have grounds for no-fault divorce. Some states have statutes requiring the parties to live apart from one another for a certain predetermined period of time. The reason the time limitation exists is to see if the couple can reconcile.

Here is a breakdown of separation and divorce requirements for each state as well as the Statutes or Code of the State:

Alabama: Alabama does not require a separation period prior to divorce but a judge may order a temporary separation before granting the divorce. In the instance where one party does not believe the divorce is broken or believes reconciliation is possible, the judge may order a period of separation for the couple to attend counseling [Alabama Code Title 30. Marital and Domestic Relations].

Alaska: Alaska does not have provisions for separation prior to divorcing. A couple who wishes to stay married for religious or financial reasons can file for a legal separation in the Alaska court system. The judge will set a hearing to determine child custody, child and spousal support as well as property division. You can only file for legal separation in Alaska one time and there are grounds that must be met prior to filing legal separation [Alaska Statutes 2016 §25.24.400].

Arizona: Arizona has a traditional marriage or a covenant marriage [Arizona Revised Statutes Title 25 – Marital and Domestic Relations, Chapter 1, Article 3, §25-125]. In order to divorce with a covenant marriage, the couple must be separated for one year without reconciliation from the date a decree of legal separation was entered; or if no degree is entered, the couple must live separate and apart for 2 years. In a covenant marriage there are only certain instances where separation or divorce is granted [Arizona Revised Statutes Title 25 – Marital and Domestic Relations, Chapter 7, Article 1, §25-901-906].

If the couple does not have a covenant marriage, there is no separation requirement before filing for divorce [Arizona Revised Statutes Title 25 – Marital and Domestic Relations, Chapter 1, Article 3, §25-125].

Arkansas: Arkansas requires the couple to be physically separated for 18 months prior to divorcing [Arkansas Code; Title 9, Chapters 12-301]. There are no other provisions for separation in Arkansas.

California: California has no provision for the couple to be physically separated prior to filing for divorce however, once the divorce is filed, California has a cooling off period of 6 months before the divorce will become final [California Code, Family Code - FAM §2310].

Colorado: Colorado does not require the couple to be separated any amount of time prior to filing for divorce. [Colorado Revised Statutes; Title 14. Domestic Matters, Article 10, §14-10-106].

Connecticut: When filing for an uncontested divorce, Connecticut does not require the couple to be separate for any length of time [Connecticut General Statutes; Title 46b, Chapter 815J]. In Connecticut, a couple can separate and live separate and apart without filing legal paperwork with the court.

District of Columbia: The District of Columbia requires couples to be living separate without cohabitation for 6 months before filing for divorce. The couple can still live in the same dwelling (under the same roof) but must live in separate bedrooms, have separate bank accounts, essentially living like roommates voluntarily for 6 months [District of Columbia Code - Title 16 - Chapter 9 - §904, 905, 906].

Delaware: In Delaware, you and your spouse must voluntarily be separated at least 6 months before you can file for divorce. Both spouses can live under the same roof but you cannot share a bedroom or have sexual relations during that time [Delaware Code; Title 13, Chapter 15 §1505].

Florida: Florida does not recognize legal separation and does not have a separation requirement prior to filing for divorce [Florida Statutes Title VI. Civil Practice and Procedure, §61.052. Dissolution of Marriage].

Georgia: There is no separation requirement prior to filing for divorce in Georgia [Georgia Code Title 19. Domestic Relations. §19-5-3].

Hawaii: In Hawaii, there is no separation period prior to filing for an uncontested, no fault divorce. Hawaii does permit spouses who want to separate to file documents for legal separation to not exceed 2 years [Hawaii Revised Statutes Division 3. Property; Family. Title 31, Chapter 580 §71-76]. 


Idaho: In Idaho, there are no legal provisions for a period of separation prior to filing for divorce. Idaho does permit legal separation, which means you can file paperwork with your court to be legally separated but still married [Idaho Code, Title 32, Domestic Relations, Chapter 6 §32-603 and §32-610].

Illinois: Prior to filing for divorce in Illinois there is a mandatory two-year separation living separate and apart statute. This two-year separation can be reduced to 6 months if both parties agree and sign the waiver of the two-year period [Illinois Statutes Chapter 750. Families, Act 4, Part IV, Dissolution and Legal Separation, §401].

Indiana: In Indiana, you and your spouse must live separately for at least 60 days before the court will finalize your divorce. There is no formal separation time but the 60 days is a cooling off time where you and your spouse cannot live together. If the court believes that there is a chance for reconciliation, the court can postpone the divorce and require additional separation time for you and your spouse to seek counseling.

Indiana also recognizes legal separation as an alternative to divorce as a temporary solution. This legal separation period lasts for 1 year only. After that one year you and your spouse resume your marital status or you must file for divorce [Indiana Code Title 31. Family Law and Juvenile Law. Article 15, Chapters 2-3].

Iowa: Iowa has a 90-day waiting period where you and your spouse must live separate and apart before the divorce can become final however there is no requirement that you and your spouse must live in separate residences during this time [Iowa Code. §598.5 and §598.17].

Kansas: Couples filing for divorce in Kansas do not need to be physically separated prior to filing the paperwork [Kansas Statutes; Chapter 23, Article 27, §23-2701].

Kentucky: In Kentucky, a divorcing couple must separate for 60 days before the court grants the divorce. Living apart means the couple may live under the same roof without sexual cohabitation [Kentucky Statutes; Title 35, Chapters 403.140].

Louisiana: Louisiana requires that divorcing couples live separately but this separation period depends on whether or not you have a covenant marriage.

For a marriage that is not covenant, the separation period for parties without children is 180 days; for couples with children, the separation period is 365 days, unless abuse of a parent or child occurs, in which case separation is reduced to 180 days.

Louisiana also recognizes covenant marriages. These marriages are for couples seeking a lifelong commitment. A covenant marriage requires couples to undergo counseling and sign a declaration of their intent to enter into a covenant marriage, and ending these marriages is more difficult than ending a standard marriage. The waiting period to end a covenant marriage depends on whether the couples have an order of legal separation. If the parties are not legally separated, they must live apart for at least two years. If the parties are legally separated, they must wait one year from the date of the separation order, or 18 months if the couple has minor children [Louisiana Code of Civil Procedure - Article: 103].

Maine: In Maine there is required physical separation requirement prior to filing the divorce paperwork. Maine permits legal separation should a couple wishes to file this paperwork prior to filing for divorce. [Maine Revised Statutes; Title 19A. Domestic Relations. Chapter 27 §851. Judicial Separation and Chapter 29. Divorce §901].

Maryland: In Maryland, you and your spouse must live, voluntarily, separate and apart without cohabitation for 12 months and there is no reasonable expectation of reconciliation. This may mean that both parties must live in separate residences, you can live in the same home you cannot share a bedroom and must live as separate persons [Annotated Code of Maryland Family Law; Title 7, FAM LAW §7-103].

Massachusetts: Massachusetts does not have a legal separation or separation requirement to file for divorce. [Massachusetts General Laws Part II. Domestic Relations, Chapter 208].

Michigan: Michigan does not have any provisions for a legal separation. Michigan does not require the spouses to physically live separate and apart prior to filing for divorce [Michigan Compiled Laws - Section: 552.6].

Minnesota: Minnesota does not have any waiting or mandatory separation time before a couple can file for divorce [Minnesota Statutes; Chapters 518.06].

Mississippi: Mississippi does not require the spouses to physically live separate or apart before they file for divorce [Mississippi Code, Title 93, Chapter 5].

Missouri: There are no provisions or requirement stated that the parties must live physically separate prior to filing for divorce in Missouri [Missouri Statutes - Title 30 - Chapter 452 - §300].

Montana: In order to file for divorce in Montana, the couple must live separate and apart for 180 days or more. [Montana Code Annotated, Title 40. Family Law. Chapter 4-104].

Nebraska: Nebraska does not require the couple to be living separate and apart prior to filing the divorce paperwork, however there is a 60 day cooling off period after the paperwork is filed before the divorce can become final [Nebraska Statutes; Chapter 42, §361].

Nevada: Nevada does not have a requirement for separation when filing a no-fault divorce based on incompatibility. However, the couple must live separate and apart for one year without cohabitation if they are not filing for divorce on the grounds of incompatibility [Nevada Revised Statutes Title 11. Domestic Relations. Chapter 125, §010].

New Hampshire: New Hampshire recognizes legal separation but if you are filing for divorce, there is no period of time that you are required to be separated prior to filing the divorce paperwork [New Hampshire Revised Statutes 458: Annulment, Divorce and Separation].

New Jersey: A separation period is no longer required to file for divorce in New Jersey [New Jersey State Annotated; Title 2A, Chapter 34-2]. There is a time requirement of 6 months however and if the marriage is less than 6 months then the couple must wait 6 months to file for divorce. In New Jersey you can still file for divorce based on separation meaning you and your spouse live separate and apart for at least 18 months [New Jersey Statutes Annotated: Title 2A, Chapter 34-2].

New Mexico: New Mexico recognizes legal separation when both spouses agree to live permanently and physically separate from each other until they are ready to divorce. New Mexico does not have requirement for the couple to be separated prior to filing for divorce [New Mexico Statutes; Article 4, Sections: 40-4-1, 40-4-2].

New York: New York has very complicated divorce and family law. In New York, you must be separated for at least 6 months prior to filing for divorce. This does not mean you must be physically living in separate houses. Otherwise, if you are filing with the grounds that you and your spouse have lived separate and apart, both parties must have a written agreement with the separate date clearly stated [Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, §230].

North Carolina: In North Carolina, couples must live separate and apart for one year, which means living in separate residences. When one spouse is sleeping on the couch or living in another part of the house, that does not qualify as living separate and apart. No paperwork or official filings are required to become separated [NC Statutes, Chapter 50: Divorce and Alimony; G.S. §50-6, Divorce after separation of one year on application of either party].

North Dakota: North Dakota has no required separation before filing for divorce. However, the court may grant a temporary or permanent decree for separation if one party disagrees to the divorce and wishes to reconcile or try counseling [North Dakota Century Code - Volume 3A – Title 14; §14-05-03].

Ohio: On the application of either party, the Ohio court hands down a no-fault divorce when the spouses live separate and apart without cohabitation for one year, or plead incompatibility unless denied by the other spouse. By mutual consent the one-year can be waived [Ohio Code - Chapter 3105: Divorce, Alimony, Annulment, Dissolution of Marriage].

Oklahoma: Oklahoma does not require the couple to live separate and apart before filing for divorce [Oklahoma Statutes - Title 43 - §101 and §103].

Oregon: Other than the case of incapacity on the part of one partner or force or fraud, all divorces in Oregon are no-fault, which means that irreconcilable differences between the parties have caused the irremediable breakdown of the marriage, no physical separation of the spouses is required. [Oregon Revised Statutes – Chapter 107 Marital Dissolution, Annulment and Separation; Mediation and Conciliation Services; Family Abuse Prevention. §107.025, §107.036, §107.015].

Pennsylvania: Pennsylvania does not have a physical separation time before filing for divorce; however, the spouses must be considered living apart for 90 days prior to filing the paperwork. This means the spouses can live in the same house but cannot share a bedroom and are living like roommates rather than husband and wife. Pennsylvania also provides for a living separate and apart ground for filing for divorce. In this both parties must be living separate and apart in different residences for 2 years or more [Pennsylvania Consolidated Statutes - Title 23 - §3301].

Rhode Island: Rhode Island does not require spouses to be separated before filing for divorce. However, one ground to file for divorce is when the spouses have lived separate and apart for at least 3 years [General Laws of Rhode Island - Title 15, Chapters 15-5-2 15-5-3, 15-5-3.1].

South Carolina: South Carolina requires a minimum of one-year separation before you can file for divorce [Code of Laws for South Carolina - Chapter 3; §20-3-10].

South Dakota: South Dakota permits filing for divorce under the ground that both parties are in agreement to separate, but there is no time required for that separation period [South Dakota Laws - Volume 9A - Title 25 - Chapter 25].

Tennessee: For a divorce there is no separation requirement but there is a cooling off period of 60 days once the paperwork is filed [Tennessee Code - Volume 6A, Title 36, §36-4-101 and §36-4-103].

Texas:Texas does not have a formal separation requirement to file for divorce; however, you can file on the grounds that you and your spouse have been living separate and apart for three years if you meet that requirement [Texas Code - Family Code - Chapters: 6.001-6.007].

Utah: Utah does not have a separation requirement when couples are filing for divorce under a no-fault ground [Utah Code - §30-3-1].

Vermont: To file for divorce in Vermont, couples must live completely apart for 6 months. Even though you must live separately, for financial reasons, you may be able to live under the same roof but would have to show that you and your spouse do not share a bedroom and are living separate lives, pay your separate bills, etc. [Vermont Statutes - Title 15 - §551 and §555].

Virginia: If there are no minor children and the couple has a written separation agreement, you only need to be separated for 6 months prior to filing for divorce in Virginia. If you have children however, the parties must live separate and apart for one year. In both instances, the couple must not be cohabitating and be separate and apart without interruption. If you live in the same house, you would have to prove to the court that you and your spouse are truly separated for the required time period without interruption [Virginia Code - Title 20 - §20-91].

Washington: Washington does not require a separation period for the spouses before filing for divorce. The only ground to file is irretrievable breakdown of the marriage. However, the court may dismiss the divorce action or order a period of separation if one spouse claims coercion or if the court finds that there may be a chance the couple can reconcile the court may order the couple to attend counseling [Revised Code of Washington - Title 26 – Chapter 26, §26.09.030].

West Virginia: In West Virginia, there is no provision for separation prior to filing for divorce provided you were married in West Virginia and at least one party current lives in West Virginia [West Virginia Code - §: 48-5-202 and §48-5-209].

Wisconsin: Wisconsin does not have a separation requirement before you file for divorce
[Wisconsin Statutes; §767.07].


Wyoming: In Wyoming you can file for divorce without having to live separate and apart for any time [Wyoming Statutes - Title 20 - Chapters: 20-2-104, 20-2-105].

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