Living Apart Legally

Aug 8, 2012 by

When two married spouses do not live under the same roof they are considered as living apart in the eyes of the law. However, living apart also means a couple has separated and there are several different kinds of separation pertaining to divorce. Abandonment, however, is not the same as separation. In a fault-based divorce, abandonment is often grounds for seeking a divorce after a spouse has already left the home for certain period of time.

Separation comes in four types: trial, permanent, legal, and living apart. A trial separation is a test period wherein spouses live apart in order to decide if they want a divorce; it’s usually not legally recognized. Permanent separation occurs when couples have decided that getting back together is no longer a possibility. Sometimes it leads to divorce, though sometimes the couple remains legally married for religious or personal reasons. Legal separation is the most formal type as it’s affirmed by the court. However, a legal separation is not a divorce. Spouses that are legally separated remain married in the eyes of the law. Finally, living apart is a situation where spouses no longer cohabit in the same residence.

Some states have a living apart cause of action, meaning that spouses can file for no fault divorce on account of the fact that they don’t live together. Courts require that they live apart for a set time period, anywhere from 6 months to 3 years, before they can file for a no fault divorce. Some states require the time apart be voluntary for both spouses or documented by the court with a formal separation agreement.

If one spouse leaves and never returns, that’s considered abandonment. In states that allow fault-based divorce, abandonment is one of the traditional grounds for seeking divorce. Usually, the abandoned spouse needs to wait a certain amount of time before filing for divorce. That length of time varies by state, though it’s usually at least a year. The time period cannot be interrupted by short reconciliations. Further, in fault-based divorces one must prove their case since the abandoned spouse is alleging wrongdoing. It needs to be proved to the court that the spouse had no legitimate reason to leave and also abandoned all marital obligations. While abandonment is grounds for divorce, it doesn’t automatically mean a couple is divorced. The abandoned spouse will still need to file for divorce so that the dissolution of marriage is officially recognized by the court.

Abandonment and separation can be confusing, especially when definitions and requirements vary by state. Spouses should seek legal advisers who are knowledgeable in their state’s rules to get the most accurate counsel.


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