DIVORCE, CUSTODY & FAMILY LAW

Summary

You Don't Need to "File" Anything to Be Separated. A common misconception is that for the one-year no-fault divorce clock to start, you need to file paperwork with the court. That is not true. The twelve-month period begins on the last night you sleep under the same roof as your spouse. At the final hearing, you simply need a witness who knows you well enough to confirm that you have been separated for more than a year.

What You Should File: An Action for Separate Support and Maintenance. Unless you have a very simple situation — a brief marriage, no children, and nothing to fight about — simply moving out and waiting a year is usually not the best approach. Instead, you should file what is known as an action for separate support and maintenance. You can file this on the first day after you or your spouse moves out.

In a separate support and maintenance action, the court can address every issue that would arise in a divorce case: custody, child support, division of property, alimony, attorney's fees, and the sale or disposition of the marital home. Filing early is critical because contested cases with multiple issues can take several months to resolve. If you file for separation promptly, by the time your one-year mark arrives, all the contested issues should already be resolved. That means on day 366, you can file for divorce and have it finalized promptly — without additional months of litigation.

Getting Prompt Relief. One of the most important reasons to file early is that you can get a temporary hearing — typically within about 30 days of retaining an attorney — at which the court will issue a temporary order addressing who pays what expenses, who has custody of the children, and what the visitation schedule will be. If you are not getting along with your spouse, the court will step in and provide structure.

Fault-Based Cases. If fault grounds exist — such as adultery, habitual drunkenness, or physical abuse — and you are still living together, the court has jurisdiction to hear the case and can order the at-fault spouse to leave the home. In the absence of fault, the court does not have jurisdiction until the day you physically separate. In adultery cases specifically, you only have to wait 90 days from the date of filing to finalize the divorce.