A divorce decree cannot be granted in the District unless the following separation criteria have been met:
Parties have “mutually and voluntarily” lived separate and apart from one another without cohabitation for a period of six months prior to commencing of an action or that; parties have lived separate and apart without cohabitation for a period of one year prior to commencing the action.
In the second category most likely the separation has been court ordered as it would not have been “mutually and voluntary.” Thus the statute requires a legal separation before issuing a divorce decree and the legal separation is either “mutual and voluntary” for a period of 6 months or for one year if not mutual and voluntary.
Parties may reside in the same household/under the same roof and deemed to be legally separated as long as they have pursued separate lives, not shared the same bed or board. Thus the statutory 6 months or the one year period legally required may be satisfied when parties reside in the same household.
This arrangement however is neither practical nor advisable in a contested divorce action. It creates more problems than offer solutions and most likely take an undue emotional toll on both parties. Also legally, the burden would be on the movant to establish that although resided together — they pursued separate lives not sharing bed or board either for 6 months or a year.
Once the separation requirements are met, they court will turn focus on distribution of property if there is no valid antenuptial or postnuptial agreements. The basic standard is “equitable” distribution of property. However there is nothing simple or uncomplicated with applying this standard to the distribution of property.
All property acquired prior to the marriage and all property acquired post marriage through gift, bequest, devise, or descent — are all taken off the marriage pot and assigned back to original acquirer or recipient.
All other assets and property acquired after the marriage either acquired jointly or separately all fall in the marriage pot and the legal term “equitable, just and reasonable” distribution applies thereto.
The equitable, just and reasonable distribution of the property in the marriage pot is further defined by considering closely the following factors and considerations:
The length of the marriage; specific factors such as age, health, occupation, comparative income, education and employability of each of the parties;
Child custody or child support orders or agreements entered in by the parties; any award of alimony and factors warranting grant of alimony; obligation and other children from other marriage;
Each parties’ ability and prospect of acquiring other assets and income; each parties contribution during the marriage to the family unit; parties contribution to one another education and employability if applicable;
Parties increase or decrease in income caused by the marriage or the family unit; each parties total financial landscape and influences and cross over from one to the other in acquisition, preservation, or appreciation or dissipation of the assets;
The tax effect on all assets; the cause of separation assignment of guilt although not a direct factor clearly an indirect tangential factor; and other factors as may be raised by either of the litigants deemed relevant by the court.
There is also a jurisdictional requirement. No action for divorce may be filed and prosecuted in the District unless at least one of the parties has been a DC resident for a period of six months preceding the commencement of the action.
Moreover, a divorce action involving children will most likely include the child custody and child support statutory elements in court’s total analysis and ultimate ruling.
It is critical to have a highly experienced lawyer not only in divorce actions but also in the specific areas of child support and custody from the outset to assure truly equitable distribution of property, if applicable, and a fair and reasonable custody and support arrangement.
Ideally if at all possible a separation agreement is the best way to address the divorce, alimony, child custody and child support issues simultaneously, amicably and globally.
If you are contemplating filing for divorce, or have pending child custody or child support issue refer to our DC family lawyer: DC Divorce Lawyer page for more information on this subject.