What To Do When Your State Requires Separation Before Divorce

A select few states require spouses to live separately for a period of time (e.g. one year) before either can formally file for divorce, which can be problematic for a number of reasons. For instance, you could be held liable for debts your spouse incurs during the separation because you're still considered legally married. Unfortunately, it can be challenging getting around this requirement, but here are two ways you can do it.

File a Fault-Based Divorce

Generally, you will only be required to submit to a waiting period if you're seeking a no-fault divorce. This type of divorce lets people end their marriages without providing a legally acceptable reason, such as adultery or abuse. Thus, if you want to avoid having to wait to break up with your soon-to-be ex-spouse, you may want to file a fault-base divorce instead.

In a fault-based divorce, you're essentially telling the court that the marriage broke down for a specific reason that's covered by state statutes. Common fault grounds include:

  • Adultery
  • Physical or emotional abuse
  • Abandonment or desertion
  • Imprisonment for a period of time
  • Mental illness
  • Substance abuse
  • Impotence (regardless of gender)

No state requires people to stick together through a waiting period when there are grounds for divorce. Unfortunately, proving fault can be tricky in some cases. For instance, if you use abandonment or desertion as the basis for the divorce, you have to show your spouse has been absent from the marriage for a minimum length of time (usually one year). However, your spouse can reset the clock at any time by reappearing and attempting to reconcile the marriage.

It's best to consult with an attorney for advice on the best way to handle a fault divorce to avoid many of the pitfalls surrounding this option.

Relocate to a State with No Waiting Period

If filing a fault-based divorce isn't an option, an alternative choice is to move to a state that doesn't have a waiting period. On the one hand, you can file for a no-fault divorce and have it granted within a reasonable amount of time. On the other hand, most states require you to be a resident for a period of time before you can file. For instance, you have to be a resident for six months in New Mexico before you can file for divorce. The only states that don't have residency or waiting period requirements are Alaska, Washington, and South Dakota.

For more information about avoiding the waiting period to get divorced or help litigating your separation from your spouse, contact an attorney, such as William Kirby, Family Law Attorney.

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