DO I HAVE TO GET SEPARATED BEFORE GETTING DIVORCED?
The answer to that question is not usually. Not in most states. You don’t HAVE to get separated before getting divorced. There are a few exceptions as far as a mandatory pre-divorce separation that include North Carolina which requires a one year separation before filing divorce. And several states require a “waiting period” which in a way feels like a mandatory separation but it is not called a separation.
But as a general rule though, a lot of people, probably most people, don’t get a separation agreement first. They move straight to a divorce.
Why get a separation first? Good question. My hunch is that most people who go that route are not sure yet if the marriage is over. They want a little time out. So they do a trial run first. But the divorce laws of the State of New York do not require that you first get a separation agreement. Note, as stated above that other states and other countries could have different rules. There are some states that may have a short cooling off period that is required to go from being separated to divorced. And countries like Italy have complicated rules on this issue as well. But as a general rule, my sense is that there is no requirement that you are first separated before you can file for divorce.
According to this website, these are the actual waiting periods and separation periods by state:
Thirty-four states (Alabama, Alaska, Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming) have no specific statutory requirements for waiting periods prior to filing for divorce.
- Kentucky requires a 60-day waiting period to receive a divorce decree.
- District of Columbia requires a six-month waiting period before a couple can file divorce.
- Louisiana and Montana require 180-day waiting periods before couples can file divorce.
- Four states (Delaware, Illinois, Vermont, and Virginia) require six-month waiting periods before couples can receive divorce decrees.
- Maryland and Nevada require one-year waiting periods before allowing couples to file divorce.
- North Carolina requires one year of separation before allowing a couple to file divorce.
- Three states (Ohio, South Carolina, and West Virginia) require one-year waiting periods before allowing couples to receive divorce decrees.
- Connecticut requires an 18-month waiting period before allowing a couple to file divorce.
- Arkansas and New Jersey require 18-month waiting periods before allowing couples to receive divorce decrees.
With that all being said, a separation agreement is only one of about six legal and recognized grounds for divorce in New York (this is the state I am most familiar with). So in lieu of a separation agreement (which cannot result in a divorce until a year has elapsed) you can seek a divorce on the grounds of abandonment or constructive abandonment, cruel and inhuman treatment, adultery or imprisonment, and since 2010, no fault divorce – i.e. irretrievable breakdown of the marriage for a period of at least six months. No cooling off period is required.
Note that all of these have statues of limitations meaning that you need to be separated at least one year, you need to have been abandoned for at least one year, the cruel and inhuman treatment can’t be more than five years old, your spouse needs to be imprisoned for at least three years. An action alleging adultery must be brought within five years of the discovery of the offense.
Oh, by the way, adultery is still a misdemeanor in New York State and while it is highly unlikely, the commission of the act could result in jail time for the offenders. Did you know that?!
…But to go back to your question, no, you don’t have to get separated first before you get a divorce as a general rule.
Read more on separation here.
Originally published as Do I have to get a separation agreement before I get a divorce in New York in 2008. Last updated August 30th 2017.