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Separation and Divorce: A Complete Guide

Ending a marriage can be a stressful experience. Ensure your interests are protected by learning about the steps you need to take to separate and divorce, and the documents you need to create to complete the process.

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Step 1

Separation Agreement

A Separation Agreement is used by two spouses to establish terms for living apart. It includes how they intend to separate assets and debts, and allow...

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Step 2

Last Will & Testament

Protect your assets and your loved ones with a Last Will and Testament. You can divide your property, choose a guardian for your children, and name so...

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Step 3

Online Divorce Papers

A divorce or annulment is used by two married people to legally dissolve their marriage.

Last Updated May 11, 2023

Whether it's temporary or permanent, breaking up a marriage is tough. Besides being emotionally draining, navigating the legalities of separation and divorce can be highly confusing.

This guide will walk you through everything you need to know about separation and divorce, from start to finish. We explain the differences between separation and divorce and break down each step of ending a marriage.

By exploring your options and determining which path is right for you, you'll know which step to take next.

Separation versus divorce

Although both involve splitting up, separation and divorce are legally very different.

Despite living apart, separating leaves you legally married to your spouse. Therefore, you can't marry a new partner while separated. You and your spouse can separate without involving lawyers or a court, or you can pursue a court-sanctioned separation.

Some couples separate and eventually get back together, some separate permanently, and some separate as part of the divorce process.

A divorce terminates your marriage and changes your legal relationship status. Unlike separation, only a court can grant you a divorce. Once divorced, you are legally single and can enter a new marriage.

Which one do I pick: separation or divorce?

If you're certain that you want to permanently end your marriage and want to have the option to remarry someone else, pursuing a divorce is your best option.

However, depending on your circumstances, a divorce may not be as immediate as you'd like. Even after you file divorce papers, it can take six months to one year for the divorce to finalize. Separating from your spouse and establishing guidelines is a proactive place to start while you navigate the divorce process.

If you aren't certain that a divorce is the solution, but know that you and your spouse need space, separating is your best choice. If you reconcile, you can seamlessly resume your relationship, and if you end up divorcing, you can build on the separation that you've already entered.

How long does it take to separate and divorce?

The amount of time it takes to separate and divorce varies from case to case. It can depend on a variety of factors, such as:

  • The length of your separation period
  • Your state's waiting period requirement for divorce judgments
  • Your and your spouse's ability to agree on separation and divorce terms
  • The court's caseload at the time you file divorce papers
  • The availability of judges in your jurisdiction

Do I need a lawyer to separate and divorce?

You can prepare a Separation Agreement independently, create your divorce papers online, and file for divorce without the involvement of a lawyer. However, your personal circumstances ultimately dictate your need for professional legal assistance.

If you and your spouse don't have kids or substantial marital assets, you may be more confident in divorcing without a lawyer. Additionally, if you or your spouse give up your rights to spousal support and equitable support, your need for divorce lawyers decreases.

Some legal professionals recommend that you and your spouse each consult with separate lawyers, even if it's only one time, to ensure both of your interests are being protected. Keep in mind that some states require each spouse to seek independent legal advice before filing their own Separation Agreement.

You can also consider professional mediation or arbitration services as an alternative to hiring divorce lawyers.

How do I start the divorce process?

When you know you want to terminate your marriage, you start the divorce process by separating. Even if you file for divorce without officially separating, you're considered separated while you wait for your divorce to finalize.

Therefore, the best way to start the divorce process is by creating a Separation Agreement. Once you and your spouse have terms for your separation, you can update your Last Will and Testament and file your divorce papers.

Keep in mind that each state has different divorce laws, requirements, and waiting periods. Some states have residency requirements that call for divorcing couples to live in the state where they're planning on filing divorce papers for a certain period of time before actually filing. If you don't meet your state's requirements, you can't start the divorce process.

Some states, such as North Carolina, require spouses to separate for a period of time before they can even file divorce papers. Other states allow spouses to file for a divorce at any time, but enforce mandatory waiting periods before a court will finalize the divorce. During these waiting periods, most spouses consider themselves separated.

Step 1: Create a Separation Agreement

Whether you want a divorce or you just want to try separating, creating a Separation Agreement is the best place to start.

A Separation Agreement is a document that spouses use to divide their assets and responsibilities when preparing for separation or divorce. It can include terms regarding child custody and child support, parental responsibilities, spousal support, property and debts, and other family and financial aspects.

Types of separation

Knowing which type of separation you are entering can help you gauge your need for a Separation Agreement. There are three main types of separation: trial, permanent, and legal.

1. Trial separation

Trial separation occurs when you and your spouse decide to spend time apart without pursuing a permanent end to your marriage. You can enter into a trial separation for a specific or open-ended amount of time. After the trial separation is over, you may reconcile, remain separated, or pursue a divorce.

Trial separations are informal and don't require a court's involvement, but creating a Separation Agreement can still be a good idea for documenting the date of your initial separation.

If you and your spouse enter a trial separation and don't reconcile, you'll have a record of your separation date, which can be helpful in divorce court.

2. Permanent separation

Permanent separation occurs when you and your spouse are separated, with no intention of reconciling, but are not divorced. Often, permanent separation follows a trial separation period. While spouses are navigating the divorce process, they are usually considered permanently separated.

Depending on your state's laws, you may not be responsible for any debts or entitled to any assets that your ex-partner acquires once you separate permanently.

If you choose to separate permanently, you need a Separation Agreement to document the date and terms of your separation. Having this agreement will help determine who is responsible for certain debts and assets when you submit your separation information to the court.

3. Legal separation

Legal separation is a court-sanctioned alternative to divorce. When you enter a legal separation, you're no longer married but you aren't divorced either. In the United States, 43 states recognize legal separations. The seven states that do not recognize legal separation are:

  • Delaware
  • Florida
  • Georgia
  • Mississippi
  • Pennsylvania
  • Louisiana
  • Texas.

Infographic of the United States showing that Delaware, Florida, Georgia, Mississippi, Pennsylvania, Louisiana, and Texas do not recognize legal separation, but the other 43 states do.

Like with trial and permanent separations, someone who is legally separated cannot remarry without first getting a divorce. While most couples pursue a divorce after their trial or permanent separations, legal separation is a popular choice for people who cannot divorce.

To govern a legally separated couple's arrangement, they must obtain a Separation Agreement and file it with the court. If couples can come together to agree on the terms of their legal separation, they can create their own Separation Agreement. If they can't agree, they may have to obtain an agreement by filing for separation and having a trial.

What's included in a Separation Agreement?

Not all Separation Agreements are the same. Sharing children, owning a home, or having a prenup or postnup with your spouse will affect the elements in your agreement.

Depending on your circumstances, you may address any of the following issues in your Separation Agreement:

  • Child custody and access
  • Spousal support/maintenance
  • Child support/maintenance
  • Division of debts
  • Division of property

Talking about these issues with your spouses while you're separated and agreeing on the terms of your separation can serve as a stepping stone to your divorce.

How does a Separation Agreement help?

If you aren't ready to pursue a divorce, a Separation Agreement can help you outline your and your spouse's expectations and guidelines for the separation.

If you know you want a divorce, having an agreement can establish terms and guidelines for you and your ex to follow while you navigate the divorce process. Also, if you and your spouse agree on the terms of your separation and divorce, a court may reference or follow your Separation Agreement to divide your joint assets and debt.

Step 2: Update your Last Will and Testament after separating

After separating, you'll need to update your Last Will and Testament. Although some separated spouses keep each other as beneficiaries or executors in their Wills, most people choose differently.

It might even be better to create a new Last Will and Testament. Most Wills include a clause at the beginning that revokes all prior Wills when you create a new one, helping to ensure that the previous document will be unenforceable.

When creating a new Will or updating your current one, consider appointing a new executor and revising your beneficiaries.

  • Appointing a new executor: If your spouse is the executor of your Will, you likely need to appoint someone new. Consider appointing someone else that you trust, such as a parent, sibling, or adult child.
  • Revising your beneficiaries: If your spouse is named as a beneficiary or the sole beneficiary of your estate, you can remove them from your Will to ensure they won't inherit your separately owned property in the event of your death. Your separate property includes property you owned prior to the marriage and any gifts or inheritances you received prior to or during the marriage. Many people choose to make their children their new primary beneficiaries, but you can also choose to leave assets to friends, other family members, or charities.

If you leave your spouse as the executor or beneficiary of your Will while you're separated, they can inherit and control your estate in the case of your death.

In addition to updating your Will, there are more documents to update during the separation and divorce process, such as your Power of Attorney and End-of-Life Plan.

Step 3: Create and file divorce papers

Once you've created a Separation Agreement and updated your Last Will and Testament, you can create your divorce papers and submit them to the appropriate court.

However, you and your spouse have to agree on the terms of their divorce to create your divorce papers on your own. Additionally, when you file for divorce, you have to state the grounds for divorce.

What are the grounds for divorce?

Grounds for divorce are the reasons under which a couple is granted a divorce. In the United States, each state has its own list of permissible grounds for divorce.

Generally, when spouses want a divorce, they can file on the grounds of fault or no-fault.

Fault grounds

When one spouse believes the other party is at fault for the breakdown of the marriage, they may file for divorce on fault grounds. For example, if one spouse abused the other, the wronged spouse may file for divorce on fault grounds. You may hear people refer to this type of case as a fault divorce.

Some of the most common fault grounds include:

  • Abuse, cruelty, or neglect
  • Adultery
  • Criminal conviction
  • Desertion or abandonment
  • Mental illness or insanity

No-fault grounds

When neither party is to blame for the dissolution of the marriage, they may file for divorce on no-fault grounds. Most who file on no-fault grounds list "irreconcilable differences" as the specific reason for the divorce. Generally, no-fault divorces are more amicable than fault divorces and take less time.

All states allow divorcing couples to file for divorce on no-fault grounds. The states that require spouses to separate for a period of time may deem living apart as the grounds for divorce even though both spouses agree that neither was at fault.

What are the different types of divorce?

There are two main types of divorce based on your and your spouse's ability to agree on divorce terms: uncontested and contested.

Uncontested divorce

An uncontested divorce is when you and your spouse work together to agree on how you will separate assets and debts, and how you will address child support and custody. In an uncontested divorce, both parties agree to the divorce and separate their lives without a lawyer.

An uncontested divorce can be a fault or no-fault divorce.

Couples who choose to go through an uncontested divorce will often create a Separation Agreement together and submit it to the court for approval. Uncontested divorces usually don't need to go to trial. Instead, there will be a final court ruling in which a judge determines whether your proposed divorce terms are fair and enforceable.

You can file for a no-fault, uncontested divorce without a lawyer. Uncontested divorces are becoming increasingly popular as spouses don't want to spend large sums of money on long legal battles.

According to BankRate's survey, the average cost of a divorce in the United States is $15,000. However, uncontested divorces without any disputes cost on average $4,100. If you and your spouse can agree on the terms of your divorce, pursuing an uncontested divorce where you create your own Separation Agreement and file your own divorce papers can save you both money.

Contested divorce

A contested divorce is when a married couple cannot come to an agreement over the terms of their divorce. Generally, contested divorces must go through settlement negotiations and divorce hearings in court.

The spouses may disagree about the division of their marital property and debt, child custody, spousal and child support, or whether the divorce itself should even happen.

How do I file for an uncontested divorce?

To file for an uncontested divorce, follow these steps:

1. Prepare the divorce papers

First off, you and your spouse have to document your divorce terms in your divorce papers. You may also attach your Separation Agreement with the divorce papers, which can further outline your and your spouse's preferences for splitting up your marriage.

When creating your divorce papers, you need to provide a lot of personal information. Here is a list of some of the important documents you should have on hand when you create your divorce papers:

  • Birth certificates for you, your spouse, and your children
  • Any relevant immigration and naturalization papers
  • Marriage license
  • Documents related to any previous marriages
  • Social Security cards for you and your spouse
  • Any income-related documents (paystubs, freelance invoices)
  • Property ownership papers (house deed, vehicle titles)
  • Pension and retirement plan records
  • Investment papers (stock certificates, bonds, mutual funds)
  • Debt-related records (credit cards, loans, mortgages)
  • Insurance documents (life, auto, health, homeowner)
  • Income tax return records
  • Bank account passbooks and other records

2. File the divorce papers

Next, you'll have to file the divorce papers with your jurisdiction's County Clerk's Office. In a divorce case, the spouse who files the divorce papers is the plaintiff. The other spouse is the defendant. Even in an uncontested, no-fault divorce case, only one spouse is permitted to file the divorce papers.

3. Serve the divorce papers

Lastly, if you're the plaintiff who files the divorce papers, you have to serve your spouse a copy of the divorce papers. Since you and your spouse are pursuing an uncontested divorce, it may seem unnecessary for one of you to serve the other the papers when you agree on your divorce terms. However, most states require one spouse to serve the other the divorce papers in all divorce cases.

Generally, you can't serve divorce papers to your spouse yourself. Instead, you must have a neutral party do it for you.

After divorce

After you file divorce papers and a judge has granted you and your spouse a divorce order, you become legally divorced. Divorce orders are final and cannot be reversed.

Once you're divorced, you're legally allowed to remarry. If you and your ex-spouse wanted to get back together after a divorce, you would have to get married again and enter a new union.

Depending on your circumstances, you and your spouse may still have to interact after your divorce. Spouses who share children or pets usually have to work together to effectively take care of their dependents. In this case, it's best to create records of your agreements and schedules to minimize disagreements about your arrangement.

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