In our state, the term “legally separated” is a term of art used by attorneys, and misused by many non-attorneys. This legal separation is a decree made by a judge after a special trial based on marital fault. The court enters an official decree, stating that you or your spouse was wronged and declaring you separated. Why do all of this to separate? Because people are correctly reluctant to move out of the family home for fear of committing abandonment. Marital misconduct (marital fault) can easily cause a great deal of harm to a spouse’s case. This process of a judge declaring a person to be legally separated is a rare event indeed, but it is still alive and well in our state. In legal terms, this process of declaring people to be separated, but still married to each other, is called a divorce from bed and board.
What people usually mean is a “separation” that will allow them to get divorced after a year of separation, Two main things are required to be separated for purposes of a divorce. First, the husband and wife must not live together in the same residence for at least one year. Living in the same residence in different parts of the house is not adequate. Second, either the husband or the wife must intend for the separation to be permanent. Note there is no requirement that both intend the separation to be permanent; only one person must. If they are living separately but neither intends to be separated, such as those separated by military service or extensive travel, they are not separated for the purpose of getting divorced. There is no legal requirement for any documents to be written or signed for people to be separated. The fact that people live apart, and one of them intends the separation to be permanent, is sufficient to be separated for the purpose of filing for a divorce after one year has passed.
Clients sometimes ask me if they can agree to say they have been separated for a whole year, when they have only been separated a few months. The answer is always NO. Alleging untruthful things in a divorce complaint (the document that generates the lawsuit) constitutes the crime of perjury, whether one person commits perjury or both do, regardless of whether you agree to do so. The process of a judge entering a divorce based on one year of separation is called an absolute divorce. Once this type of divorce is entered, each person is legally free to remarry if he or she chooses to do so.