11 Aug 23

Separation and the Validity of a Separation Agreement if Papers Are Not Filed in Court

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Last Updated on: 2nd October 2023, 06:52 pm

Divorce and Separation: Understanding the Legal Process

Divorce has become a common aspect of society today, and it is important to understand the legal coverage of the process. One question that often arises is whether separation can serve as grounds for divorce and if a separation agreement is valid if not filed in court.

What Are Grounds for A Divorce?

Grounds for divorce refer to the reasons that have led to seeking a divorce. The court grants a divorce based on specific reasons, and as a petitioner, you must explain these reasons to the court. It is advisable to state multiple grounds for a stronger petition.

There are six major grounds for divorce that can be used in court:

Based on these grounds, separation is a valid ground for divorce, but the duration of separation influences the nature of the divorce the court can grant.

One Year Voluntary Separation

A judge can grant a divorce if you and your partner have been living separately for a year without getting back together. Having a witness to confirm this separation is important to establish that you are not at fault.

Two Years Separation

If you and your spouse have been living separate lives for more than two years and both agree to the divorce, you can petition for a divorce based on this ground. The separation does not necessarily mean living in different households, but having separate domestic and sleeping arrangements.

Five Years Separation

Similar to the two-year separation ground, the five-year separation ground does not require your spouse’s agreement. If you have lived separately for at least five years, you can file for a divorce regardless of their agreement.

Does Separation Also Mean Divorce?

Separation does not necessarily mean you should divorce. You can choose to reconcile with your spouse after a period of separation. A separation agreement is a contract between spouses when they separate, which can be used to resolve various issues.

A separation agreement is not just a temporary document but can be binding and incorporated into the divorce proceedings to support final cases.

Preparation and Validity of a Separation Agreement

While the law does not require a separation agreement, it is advisable to have one to settle issues like property division, custody, debts, and support. In most states, the agreement requires the assistance of attorneys representing each party and should be notarized.

The separation agreement is voluntary, and no authority can compel you or your partner to sign it. The agreement is valid whether or not it is filed in court, as long as it is prepared in good faith, with full disclosure, and the terms are reasonable and fair.