Barbara Sadler: How Long Do You Have To Be Separated Before Divorce?

The decision to end a marriage is one few people take lightly. However, once the hard choice is made, most people want to move on as quickly as possible, and finalizing the divorce is a big part of that. The laws in the state where you live dictate how quickly that can happen.

The primary considerations in determining how quickly you can get divorced in your state are the following:

• Do you meet your state’s Divorce Residency Requirements?

• Does your state require you to wait for a certain amount of time before filing for or finalizing a divorce?

• Does your state require you and your spouse to live at separate residences for a set amount of time before getting divorced?

If your marriage is no longer working, you have the option of filing for legal separation or divorce. Unfortunately, in Utah , these options are not described in such a straightforward manner. Instead, legal separation is known as divorce from bed and board, while an actual divorce is called a divorce from the bond of matrimony. Considering the similarity in terminology, it’s easy to get the two confused. To ensure you meet the requirements for a divorce, particularly the length of separation required, it’s important to know and understand the differences between the two.
A mandatory waiting period, also commonly referred to as a cooling off period, is the amount of time that must pass before your divorce can be filed or, in some states, before it can be finalized. Not all states have cooling off periods, but in those that do; it generally begins to run either as soon as the divorce is filed or once your spouse is served with divorce papers. In the states that have one, the mandatory waiting period usually ranges from 30-90 days, although even in states that don’t have a mandatory waiting period, it may still take that long to finalize the divorce because the judge’s schedule controls how quickly your case proceeds. Among other things, your state may require a divorce hearing, and even if it doesn’t, your case likely has many others in front of it waiting to be finalized. Generally though, courts administer uncontested divorce cases quickly when the proper paperwork is filed in a timely manner. In some states, mandatory waiting periods are longer when the parties have minor children together, the theory being that there are benefits when children are able to grow up in a household with both parents and for that reason, additional time should be given to the decision to end the marriage. When a state does increase the waiting period in divorces with minor children, the difference tends to only be a month or two. Michigan, which enhances the waiting period from two months to six months when the parties have minor children, is a noteworthy exception to this.

A separation period, on the other hand, is the amount of time that the spouses must be separated before getting a divorce. In some states, the separation period must be met before the divorce can be filed, while in others, it just needs to be met before the divorce can be finalized. The chart below indicates which states have waiting periods and/or separation requirements. As a practical matter, the point of waiting periods and separation requirements is the same to give couples an opportunity to rethink the decision to end their marriages before it’s too late. There are a number of reasons why marriages break down. Couples wishing to start the divorce process should take time to consider how to proceed and ways of keeping costs to a minimum. If your marriage has irretrievably broken down, you will typically prove it by citing one or more of the Five Facts of Divorce (often referred to as ‘grounds for divorce’):

I. Adultery (for opposite sex couples)

II. Unreasonable behavior

III. Desertion (for a minimum of two years)

IV. Two years separation (with consent)

V. Five years separation (no consent required)

You do not need to be separated before starting divorce proceedings. You must have been married for at least one year and your marriage must be legally recognized and registered.

There is a process known as legal separation, but this is not necessary if you want to divorce. Legal separation is for couples who wish to separate without divorcing. This can perhaps be for religious reasons, or a couple may have been married for less than one year or may want more time to consider the future of their marriage. In fact, most couples will separate informally while they consider a divorce, which provides a useful opportunity to work out differences and attend mediation sessions at which an agreement may be reached amicably.

Annulment is another way of ending a marriage, but the procedure is more complicated and time consuming. A marriage can be annulled at any time after your wedding (unlike a divorce, which requires you to wait for one year), but you will need to prove that your marriage was not valid.

What a court considers in divorce applications

The only grounds for divorce are that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably. If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Cost of a divorce

In some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. To be eligible for a reduced fee for a joint application, both you and your spouse must qualify for the same reduction. If only one spouse qualifies for the reduction, then the full fee applies. The Court does not set the fees payable. Court fees are set by Federal Government Regulations. If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:

• there has not been 12 months separation as alleged in the application, or

• the Court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce. If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone. The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:

• make an agreement with your spouse and file it with a court, or

• seek orders from a court, where you and your spouse cannot reach an agreement.

If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.

You should not make firm plans to marry on a specific date until the divorce order is finalized. You may, however, complete and lodge a Marriage with an authorized celebrant before the divorce order is finalized. If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorized marriage celebrant at least one month before the date the marriage is solemnized, and comply with other requirements of the Marriage Act. The authorized celebrant must sight a copy of the divorce order before the wedding can take place. In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing.

For example, you may be told at the hearing that you need to provide more information. It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as separation under the one roof. If this applies to your situation, you need to prove to the Court that you were separated during this time.

In Utah, the court allows divorce for both fault grounds and no-fault grounds. In a no-fault divorce, a couple essentially states that their marriage is no longer working, without assigning legal blame to either spouse. The grounds for no-fault divorce are:

• In-supportability: The marriage has become “insupportable” because discord or a conflict of personalities destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.

• Separation: The spouses have lived apart, without cohabitation, for at least three years.

The fault grounds for marriage include adultery, cruelty, abandonment, and insanity.

Division Of Asserts

The judge will divide the marital property equally between the spouses. Each spouse will get to keep his or her own separate property, which includes property the spouse earned prior to marriage and gifts or inheritances to that spouse alone during marriage.

In most states you have no choice, but to wait out the state’s residency requirements as well as any separation and/or cooling off periods. However, some states do allow people to seek a waiver of the cooling off period. Some waivers are granted when both spouses to agree while others generally must be for good cause. For example, Iowa, which has a 90-day waiting period, has a procedure for asking the court to waive this requirement. However, the judge generally only grants a waiver for good cause, which generally means that the waiver is necessary to protect the rights or interests of one or both spouses or the minor children. If you file for divorce using documents you prepared online with Divorce Writer, you will receive any forms available to reduce the length of time to finalize your divorce in your state. Divorce Writer also includes step-by-step filing procedures with state-specific tips for completing your divorce as quickly as possible.

Rules on Separation Before Filing for Divorce in Utah

Couples may choose to separate for many reasons, but couples frequently separate because they are planning to divorce. Separations may mean one spouse physically moves elsewhere, or the spouses may simply begin living separate lives in the same house.

Legal Separation

Utah allows spouses to divorce without separating for any amount of time. Unlike many other states, law does not provide any process for legal separation, which would allow couples to live legally separate lives without actually divorcing. However, Utah recognizes that spouses sometimes need courts to intervene during periods of separation, so spouses can ask the court for orders addressing certain issues prior to their divorce.

Suit Affecting the Parent-Child Relationship

If spouses with children wish to live separately without filing for divorce, they can file a Suit Affecting the Parent-Child Relationship. This type of suit addresses the rights and duties of each parent, the child custody schedule and the amount of child support a parent is required to pay, but it does not require divorce. However, SAPCR cases do not address common legal separation issues, such as property division or alimony payments. Spouses commonly file SAPCR cases if they do not yet meet six-month residency requirement for filing for divorce but want to establish rights regarding the children until they qualify to file.

Temporary Orders

Instead of filing a SAPCR case, couples who qualify to file for divorce can file their divorce paperwork and ask the court to issue temporary orders until the divorce is final. These temporary orders could include the payment of monthly expenses, temporary spousal support, temporary custody of the children and temporary child support payments, much like orders in a typical legal separation. The court can then wrap these temporary orders into the divorce decree or simply allow them to expire when the divorce becomes final.

Separation Agreements

Utah allows spouses to enter into contractual separation agreements or property partition agreements to govern their conduct prior to a divorce. However, they consider these types of agreements to be contracts; therefore, they are not enforceable as court orders, so a judge cannot find a spouse in contempt and punish him for disobeying the agreement. Instead, one spouse would have to bring a lawsuit against the other for breaching the contract, which may require a lengthier court process.