"Separate and Apart": Does One of Us Have to Move out to Get a Divorce?

See what living "separate and apart" means, the reason for the rule, and how often it actually comes into play.

Deciding whether to divorce can take a long time. Or it can be quick. Either way, once the decision is made, plenty of spouses just want to get on with the process.

There's a longstanding, potentially tricky rule about getting a divorce, though: In many states, you and your spouse have to physically separate—and stay separated for a specific period of time—before being able to file for divorce or get your divorce finalized. This kind of a rule is called a "separate and apart" requirement.

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What's Living "Separate and Apart"?

The separate-and-apart requirement, where it exists, is supposed to be satisfied in order to show that a marriage really is over, meaning in turn that a divorce should be granted.

There actually used to be a legal view in at least some places that an "innocent" spouse should be able to get a divorce only if they could point to specific misconduct by the other spouse. Separate-and-apart requirements in some sense served as an alternative justification for a divorce, the theory being that the fact that two spouses live completely apart from each other equals proof that their marriage is dead.

So what exactly does living "separate and apart" from a spouse mean? "Separate and apart" typically means that the divorcing spouses can't share a home. But, as with so many legal questions, it's more complicated than that. In this instance, what's required of the exes depends on the specific rules in the relevant state. Consider these examples, all current as of 2021:

North Carolina. Couples can divorce when there has been physical cruelty, adultery, desertion, or habitual drunkenness. But when none of those apply, the spouses can still file for divorce if they have "lived separate and apart without cohabitation for a period of one year."

Pennsylvania. A ground for divorce called "irretrievable breakdown" in a marriage allows a court to grant a divorce if the complaint says the spouses have lived separate and apart for a year or more.

Kentucky. When spouses are divorcing because of irretrievable breakdown, the court can enter a final divorce decree only once the pair has lived apart—which does include living under the same roof without sexual cohabitation—for 60 days.

How Common Are "Separate and Apart" Laws?

In plenty of situations, the existence of a separate-and-apart requirement doesn't have much impact on the way a divorce unfolds. In other words, lots of couples decide on their own to live apart from each other regardless of any legal requirement to do so. But it's not always that simple, especially when issues like limited finances or child-rearing come into play.

Some soon-to-be divorcees will be happy to know that most states—California, Texas, and Florida among them—don't actually require you to live apart before divorce. (No-fault divorce states are less likely to have a separate-and-apart requirement.) So if you live in a "typical" state when it comes to this legal issue, odds are you're free to live in the same house as your spouse while your divorce is pending.

For more on this issue and a rundown on planning a separation, read here.