The Types of Divorce in My State

Many couples need time away from their spouse before deciding to go through with a divorce. Divorce is a major life change, especially for couples with young children.

Legal separation is an option for couples to spend time living separately before deciding to file divorce papers. Some states even require legal separation before proceeding with a divorce case.

Different states have different requirements for divorce, including timelines, marital property, and grounds for divorce. To understand your legal options for a divorce, contact a local divorce lawyer for legal advice.

Legal Separation and Divorce

Legal separation is a way for couples to step back and assess whether divorce is the right option for them. The couple can work towards reconciling their marriage during a legal separation, or it may confirm that divorce is best for everyone involved.

Couples can formalize a legal separation with a written separation agreement. The agreement can determine how to handle certain property, assets, debt, and parenting time. The court can also issue a judgment of separation court order to formalize property division, spousal support, and custody arrangements.

However, some states do not recognize formal legal separation, and the court will not issue a legal separation order. However, couples can use temporary orders or individual contracts for similar protections.

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Divorce From Bed and Board

Some states refer to legal separation as “divorce from bed and board.” Virginia, North Carolina, New Jersey, and Pennsylvania still use this term for a legal separation without a formal divorce decree.

Despite the use of the word divorce in the title, a divorce from bed and board is effectively a judgment of separation. It’s similar to a partial divorce (or limited divorce). The key difference between this and a “divorce from the bond of matrimony” is that the parties are not free to remarry.

Under Virginia law, for example, a judge can order a divorce from bed and board on certain legal grounds, such as “cruelty, reasonable apprehension of bodily hurt, willful desertion, or abandonment.”

“It’s not very common that someone actually gets a divorce based on bed and board, but it is very common that someone files based on that, then merges it into a final divorce,” says Julie Hottle Day, a family law attorney at Culin, Sharp, Autry & Day in Fairfax, Virginia.

It’s not very common that someone actually gets a divorce based on bed and board, but it is very common that someone files based on that, then merges it into a final divorce.

Divorce and Remarrying

As noted above, a legal separation does not allow the estranged spouses to remarry. It is also different from an annulment.

However, a judge can decree that the parties are “perpetually separated” and order a division of property. After enough time has passed after the date of separation, the court can merge the terms of the legal separation into a formal divorce decree.

Dissolution of Marriage

Filing for a dissolution of marriage is an absolute divorce. That is to say, once granted, the parties are free to remarry. Historically, this type of divorce required one spouse to prove fault on the part of the other spouse, such as adultery or cruelty. Such divorces are still available, but all states now recognize divorce based on voluntary separation of the parties. This is more commonly known as no-fault divorce.

“The general rule for uncontested matters is that you’ve got to wait a year if it’s uncontested from the date of your separation to the time you can file. That’s fine, but what if you have things like support or custody, and you need relief? The answer to that is you can file for a bed-and-board divorce earlier than the one year,” Day says. “Though you still can’t get your divorce until later, you can get into court to get relief.”

Living Separate and Apart Before a Divorce

All states allow for no-fault divorce, based on general irreconcilable differences. With no-fault divorce, the former spouse does not need to show fault for causing the divorce, like infidelity or cruelty. Most states allow couples to file for dissolution of marriage without a separation period. However, several states require legal separation before the court will grant a no-fault divorce.

Legal separation generally requires living separately, in a different residence. For example, a divorcing couple in North Carolina must live separately and apart for one year before they can file for a no-fault divorce. In Hawaii, a couple must separate for two years before the court will grant a divorce order. However, this can depend on other factors, including the grounds for divorce and whether one or both spouses meet the state residency requirements.

Legal Separation and Minor Children

A separation agreement is a legal contract between the parties that addresses issues a judge would otherwise decide. This includes the division of any marital property and debts, alimony, and child custody.

As a contract, a signed separation agreement is enforceable in court. If either party later seeks a divorce, the court can incorporate the terms of the separation agreement into its final decree. That said, the parties may later elect to reconcile or ask the court to modify any terms that affect minor children.

When it comes to child support, both parents are legally responsible for supporting their minor children. You cannot avoid your financial responsibilities for your child in a separation agreement. The court will determine child support based on various factors, including income, number of children, and the child’s individual needs.

Find Legal Help for a Divorce or Legal Separation

Filing for divorce is a big decision, and you may want to separate before serving divorce papers. An experienced divorce attorney can explain the differences between a formal divorce and legal separation. For more information on this area, reach out to an experienced divorce lawyer for legal advice.