Can You Be Legally Divorced After Five Years of Not Living Together?

By River Braun, J.D.

Can You Be Legally Divorced After Five Years of Not Living Together?

By River Braun, J.D.

Even though state laws vary on how divorce is obtained, all states require some type of court intervention to legally end a marriage. Even though you and your spouse might have been separated for five or more years, you cannot obtain a legal divorce without involving the family court. However, there may be advantages to being separated for a lengthy period of time before beginning the divorce process.

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Pros and Cons of Informal Separation

If you are separated from your spouse and change your mind about a divorce, you can reconcile before spending any money to hire attorneys or file a court action. Another advantage of an informal separation is that it gives you time to divide your property without a judge or attorneys involved.

On one hand, there are some potential financial benefits to an informal separation. You and your spouse can provide health insurance benefits for each other. You can also take advantage of filing joint tax returns each year. And you both retain inheritance rights which might be an advantage if you have small children.

On the other hand, without a formal divorce, you may remain liable for your spouse's debts, and your spouse may be entitled to a share of your income, retirement, and other assets accumulated after the separation. In some states, you may not be able to completely disinherit a spouse even though you specifically state so in your will.

Therefore, unless you and your spouse are reaping the financial benefits of an informal separation and the marriage is irretrievably broken, it may make sense for one spouse to petition the court for a legal divorce.

Filing for a Legal Separation or a Divorce

Depending on the divorce laws in your state, you may be able to obtain a court-ordered legal separation before you divorce. Some states allow spouses to enter a legal separation agreement confirmed by a judge while other states require one of the parties to petition the court for a separation order.

A formal separation protects each spouse from further financial liability for the other spouse's debts. It also sets marital property as of the date of the separation, providing a clear path for dividing assets. A legal separation settles matters related to custody and support so that one party can enforce obligations if the paying spouse falls behind in payments.

A legal separation often resolves the same issues that a divorce does except the marriage has not been legally terminated. In some states, such as South Carolina, parties must be separated for a year before they can obtain a no-fault divorce. Therefore, a legal separation may be worth the time and cost. However, in states that do not require long waiting periods for a no-fault divorce, a legal separation may only serve to add to the cost and time to obtain a divorce.

Depending on the laws in your state, you or your spouse may be able to file a petition for divorce with a mutual agreement attached to it. This petition requests the court to approve the agreement of the parties and legally end the marriage. This divorce filing can be simple and fast, especially if you and your spouse are comfortable with the status quo after five years of separation. Essentially, this asks the court to approve the informal agreements that you and your spouse came to on your own resolving any issues that would have arisen during the divorce process.

If you are ready to end your marriage legally, the first step is to research the divorce laws in your state. You can then determine what you need to do to obtain your legal divorce in the most efficient and cost-effective manner possible.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.