Are We "Separated?"

A no-fault divorce can be obtained on the basis of a separation.

In the District of Columbia, you can file for divorce if you have been separated from your spouse for six months and the separation was “mutual and voluntary.” If the separation was not “mutual and voluntary,” you have to be separated for a year.

In Maryland, one no-fault ground of divorce is that you have lived separate and apart from your spouse for a year. (As of October 1, 2015, there will be a second no-fault ground for divorce. It will not require a separation of the parties before a lawsuit for divorce is filed, but it will be available only in very limited circumstances. See the Spotlight Article entitled, New Ground for Divorce in Maryland – “Mutual Consent”)

What constitutes a separation for the purposes of divorce?

What constitutes a separation for the purpose of getting a divorce on these no-fault grounds? It depends.

In Maryland, you need to live in separate residences “without cohabitation” and “without interruption.” “Without cohabitation” basically means without sexual relations. “Without interruption” means the separation is continuous. If you travel together during the period of separation and share a room at Aunt Josie’s or at some hotel, you may have ended the period of separation, and reset the one-year clock. Check with your attorney.

In DC, you also need to be separated without “cohabitation,” i.e. without having sexual relations. But you can be separated under the same roof. One person doesn’t have to move out. If you don’t move out, the statute requires that you “have pursued separate lives, sharing neither bed nor board.” Generally, you should be in separate bedrooms. And typically, you can’t buy groceries together, cook together, or share meals. That’s sharing board. Again, always check with your attorney about your specific situation.

DC divorce law is more liberal than Maryland divorce law.

DC law is friendlier than Maryland law to spouses who can’t afford two households immediately. They can continue to live under the same roof while grounds for a no fault divorce accrue. Also, in DC, but not in Maryland, you can sue for divorce after only six months of living separately, if you both agree the separation was “mutual and voluntary.”

This is not legal advice. Please read our "disclaimer" to understand why this information is not a substitute for legal advice.