Divorce: Legal Separation
Written and posted by Anna Perry in January 2012
It is NOT true that mere passage of time separate and apart from your married spouse results in you being "divorced." You cannot get divorced via mere passage of time.
HOW TO SEPARATE: You can get "separated" by just walking out the door (into a separate residence or into a basement or bedroom in the same residence as your spouse) and saying "Honey, I am separating from you today: I have formed a persistent intention to end this marriage relationship and will no longer live in a marriage-like relationship with you." You then stay separate.
You should then commence the process of division of marriage/family assets and debts. (Some people start dividing assets and debts before separation but that is another topic.) Put your terms of separation in a written separation agreement with the assistance of a family lawyer or mediator and/or financial advisor. This is commonly understood to be a "legal separation." You should file the written Agreement in Court as a permanent record (and for enforcing it).
DIVORCE IS NOT THE SAME AS MERE SEPARATION! Divorce is accomplished by "suing for divorce" in the local Court where you "ordinarily" reside.
PERIOD OF SEPARATION: You will have to stay separate and apart for the statutorily required time period to qualify for a divorce Order. In Canada it is 12-months separate and apart. It is important to make a note of your separation date so you can advise the Court of the date - even years later.
In some US States, the time period is 6-months and in others it is reputed to be as little as 3-months apart. PROOF OF MARRIAGE: You will need official proof of marriage from the city/town/province/state..... where you got married. You have to prove your marriage was "legal" in order to get a "legal" divorce.
Judges do not have to (and will refuse to) pronounce you "legally divorced" if you were not legally married. This is the conundrum of same-sex couples who ordinarily reside in a jurisdiction that does not recognize same-sex marriages as being legal. Same-sex couples have to reside in a place ("jurisdiction) that recongnizes their marriage as legally binding in order to get legally divorced there. GROUNDS FOR DIVORCE: There is an exception to the requirement for a period of separation before you can divorce: if you have other fault-based grounds for divorce such as abuse/cruelty or the marriage was a nullity (not 'legal' due to several potential reasons) you may get a divorce Order sooner than via "no fault" divorce. In such fault-based divorce cases: consult an experienced family law lawyer for advice as these fault-based cases are rarely simple. BOTTOM LINE: Except for cases with fault-based grounds for divorce, a period of "separation" is required before you can obtain a Divorce Order. TO BE LEGALLY DIVORCED: A DIVORCE ORDER IS ALWAYS REQUIRED.The longer you avoid getting that divorce order, the longer you are encumbered with "married spouse" rights and liabilities to each other.
TIPS AND HINTS: if your former spouse tells you s/he has obtained a divorce, but refuses to provide a copy of the divorce Order from the Court or the contact information of the divorce Court where you can obtain the Order, then you are LIKELY NOT YET DIVORCED. Not that I am promoting the concept of disbelieving information provided by one's former spouse!
Anna "Not Born Yesterday" Perry
