The most common divorce scenario these days is a no-fault divorce, where the two spouses simply agree that they suffer from “irreconcilable differences” and they agree to part ways. It is a little bit more complicated than just signing a paper, though.
Most states require a separation period
The basic no-fault divorce requirements in most states are that the person filing for divorce must be a resident of the state and must show the couple been separated for a certain period of time. The separation period varies from state to state. Not every state has one, and some can last as long as a year. During this time, the couple remains married, with their assets still commingled, but is generally living separate lives. This can be a complicated period of time because the couple is still legally bound but also usually wanting to move on.
Legal separation documents can be helpful
In most situations, there is no requirement that you use any particular legal separation documents. In fact, for many couples documentation will be unnecessary, especially couples that are young, both working, and do not have children. The more complications a couple has the more that separation documents become important. Separation documents can explain which spouse will live in the joint home, who will have custody of the kids, and who will pay the bills. Anyone with complex assets or children should consider formalizing their separation in a written agreement.
Court approval is possible
There is generally no formal requirements to make a separation agreement binding. If the couple decides to live separate and apart they are generally considered separated, though spending one night together will usually end the separation and restart the clock on how long the separation has lasted. In many states, however, a court can grant a couple the status of “legal separation,” which is a major shift in the legal status of the relationship. The couple remains legally bound by the marriage, but a judge will typically rule on issues like property division, spousal support, child custody, and visitation. This is typically a temporary arrangement that lasts until the divorce is finalized, but some couples live legally separated lives for years, possibly because they morally disagree with divorce. Court approval makes the separation agreement easier to enforce. If a spouse misses a mandated child-support payment, for example, it can be fairly easily for the other spouse to get an order that it be paid.
Obtaining a legal separation is typically very similar to divorce. If the couple comes to court with an agreement, the judge may approve it fairly quickly. If the couple wants to fight over certain issues in open court, then it can take a long time. Courts will often try to avoid fighting the same battles twice, however. So if a judge awards legal custody to one parent during the separation that custodial parent will often have an advantage when the court looks at a later request for divorce from the same couple.