Divorce is never automatic. You and your spouse can live separately for years, but you can’t legally move on with your lives until you bring the court in on the process by filing a petition or complaint for divorce. However, doing so after a lengthy separation can streamline and simplify that process.
Advantages of Informal Separation
If neither you nor your spouse has plans to remarry or an urgent need to move on, remaining informally separated has its perks. If you don't take steps to formalize your separation, one of you can continue to cover the other on a health insurance policy. This is especially advantageous if one of you receives coverage at little or no cost through an employer. You can usually continue to enjoy the tax benefits of filing joint married returns, and you both retain inheritance rights from the other.
Disadvantages of Informal Separation
If you and your spouse no longer maintain the kind of relationship where you’re in touch with each other and can take advantage of medical insurance and married tax benefits, it usually makes little sense not to terminate the marriage. If you moved to separate homes five years ago, but you never took steps to formalize your separation, you and your spouse are still liable for each other’s debts in most states. Income is marital property in most jurisdictions as well. Therefore, everything you earned or acquired after you separated is up for grabs in a divorce. The longer you wait, the more property and debts you may each accumulate. In most states, you can’t disinherit your spouse by writing him out of your will, so you run the risk of having him inherit much of what you own, unless you legally end your marriage.
Divorce Vs. Legal Separation
You can become legally separated in one of two ways, depending on your state’s laws. You can sign a separation agreement, detailing how you’re going to deal with property, debts, support issues and your children. In some jurisdictions, this prevents your spouse from inheriting from you, and it protects you from having to share any debts he incurs or a financial windfall you might receive. Some states also allow you to file for legal separation and have a court disentangle your lives for you. The process is very similar to divorce. Therefore, it may not make sense to choose this option because a proceeding for legal separation is often as time-consuming, expensive and contentious as a divorce proceeding. Unless you don’t want to end your marriage because of religious reasons or other personal considerations, if you’re going to go through all this trouble, you might want to confer with an attorney to find out if actually divorcing your spouse is the better option.
Filing for Divorce
If you decide to file for divorce to legally end your marriage, it can be a relatively painless process depending on where you live. Some states, such as North Carolina and Delaware, will terminate your marriage without forcing you to first resolve issues of property, support and custody. If you’ve lived separately for five years, you might have informally resolved these things to your satisfaction some time ago. In states that do require you to come to terms regarding property and custody before you can divorce, you can usually create a marital settlement agreement similar to a separation agreement. In many states, no-fault grounds include marital separation. You’ve already met this requirement, so you can usually receive a divorce by simply filing a complaint, asking the court for a divorce and then submitting your agreement.