How Many Days Apart Equals a Legal Separation

Jodee Redmond
Length of separation matters when filing for divorce.

The answer to the question of how many days apart equals a legal separation is a very simple one. Living apart and obtaining a legal separation are two separate things entirely.

Date of Separation

The date of separation comes into play when a couple files for legal separation or divorce. A married couple can be thought of as living apart when one of them moves out of the matrimonial home. Marital property is divided as of the date of separation. It's important that the couple agree on a specific one so that these assets can be dealt with.

Living Separate and Apart

State law defines what the date of separation is. It is possible for a married couple to live separate and apart while still under the same roof. If they are no longer cohabiting, i.e. living as a married couple, which includes sharing the same bed, then they may be able to use that date as the effective date of separation.

Legal Separation

A legal separation is a way for a couple to have the Court deal with issues, but it does not end the marriage. The couple remain spouses of each other until a formal divorce is granted. A legal separation can deal with the following kinds of issues:

  • Alimony
  • Child custody
  • Child support
  • Division of marital property
  • Responsibility for marital debts
  • Visitation

A legal separation deals with the "business" of dealing with the couple's property until they decide whether they want to go ahead with a divorce. If one spouse would lose out on health insurance or other benefits if the couple were to divorce, then becoming legally separated instead of divorcing might be a better option.

How Many Days Apart Equals a Legal Separation?: Answering the Question

The question of how many days apart equals a legal separation comes into play when one of the parties files for divorce. A divorce may be granted if one of the following "fault" grounds is present:

  • Adultery
  • Cruelty
  • Desertion
  • Incarceration in a prison for a certain amount of time
  • Impotence (if not disclosed before the marriage)

If one of the parties wants to file for a no-fault divorce on the grounds of irreconcilable differences or marriage breakdown, the couple needs to be physically separated for a certain length of time first. The number of days the couple has been apart will be a factor. Each state sets its own time that a couple must be living apart before they can be granted a no-fault divorce on those grounds.

When to File for a Legal Separation

Legal separation is not an available option in all parts of the United States. In states where it is available, either person can file for legal separation after they physically separate from their spouse. The couple may not be ready to divorce, but entering into a formal legal separation means that they have resolved the other issues between them.

The breakdown of a marriage is never easy, but resolving the property, debt, support, and custody issues can help the two people involved. The arrangement they agree to in the legal separation can become the language for their divorce agreement, if they decide to take that next step.

If neither party intends to remarry, they may choose to remain legally married, although legally separated, indefinitely. Being legally separated doesn't happen automatically after a certain number of days apart. To make it official, you need to agree on the terms and have the Court approve your separation agreement.

For more information about legal separations and how long you and your spouse need to be separated before you can file for divorce, please consult an attorney.

How Many Days Apart Equals a Legal Separation