The filing requirements for divorce and the legal separation are significantly and materially different.
The divorce filing requires proof that:
(1) parties have mutually and voluntarily lived separate and apart without cohabitation for a period of six months before filing of the action or
(2) parties to the marriage have lived separate and apart without cohabitation for a period of one year prior to filing of the action.
The filing requirement for the legal separation is less rigorous and it requires only that:
(1) parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation; or
(2) both parties to the marriage have lived separate and apart without cohabitation for a period of one year prior to filing of the action.
You may file for legal separation without any wait period as long as you have both agreed to “mutually and voluntarily” live separate and apart.
The benefit of filing legal separation is that it allows the parties to seek relief from the court on subject matters such as alimony, child custody and support, and even disbursement of marital property or debt without the required waiting period as the divorce action requires.
At the end of proceeding with the legal separation you still remain to be married and you may reconcile and reverse whereas with divorce action — the decree is final.
Also the legal separation filing can become the precedent for the divorce decree if parties decide to dissolve marriage after legal separation.
If there is no mutual and voluntary separation, the legal requirement for filing remains to be the one year period as it is with the divorce action.
It is important to note that you can reside under the same roof and clock the separation period as long as:
1) have pursued separate lives,
2) have shared neither bed nor board
Overall, filing of the legal separation is beneficial for parties who have decided:
1) mutually and voluntary separate
2) Do not meet the required separation period for a divorce action
3) require the court intervention to address custody, support, and alimony and marital property and debt,
4) May not want to dissolve marriage via final divorce decree just yet
Marriage contracts may be annulled or dissolved when:
(1) either party has a former living spouse and the former marriage has not been lawfully dissolved;
(2) marriage was contracted during the insanity of either party;
(3) where marriage was procured by fraud or coercion;
(4) either party was matrimonially incapacitated at the time of marriage without the knowledge of the other and has continued to be so incapacitated; or
(5) either party had not attained the legal age of consent to the contract of marriage.
Contact our Washington DC Divorce Lawyer today to schedule an initial case evaluation and assessment.