Legal Separation Versus Divorce in D.C.

Unlike divorce, a legal separation does not result in the end of a marriage.

Is there a difference between a legal separation and a divorce?

Yes. The main difference is that when legal separation proceedings are complete, you will still be married to your spouse. On the other hand, when a divorce is over, you and your spouse will no longer be married, and both of you will be free to remarry if you wish.

Yet legal separations and divorces do have some things in common. For example, both proceedings provide a final resolution of important legal questions, including alimony, the division of assets and allocation of debts in a property settlement, the disposition of the spouses' homestead (the marital home), child custody and visitation and child support.

Do I have to get a legal separation before I can get divorced?

Absolutely not. Many people choose to obtain a legal separation instead of a divorce for personal reasons. For example, they may have religious beliefs that preclude them from actually ending a marriage. However, under no circumstances do you have to go through the legal separation process in order to get a divorce.

My spouse doesn't want to divorce. How does that affect me?

The short answer is that it doesn't. The District of Columbia is a no-fault jurisdiction. This means that neither spouse can block the other from obtaining a divorce. There are two simple legal grounds (or reasons) for divorce in D.C., and you only need to prove one of them:

  • Both spouses agreed "mutually and voluntarily" (meaning, of their own free will) to separate and live apart for at least six months before the date one spouse filed for divorce. The spouses can't "cohabitate" (meaning, have sexual relations) during that six month period.
  • Regardless of whether the spouses agreed to it, they wound up living "separate and apart," and without cohabitation, for at least one year before the date one spouse filed for divorce. Spouses who share a dwelling (a house, apartment, or other residence) can still be deemed to live "separate and apart," but they have to prove to the court that they have shared "neither bed nor board" (meaning, they have had separate bedrooms and have not lived like a married couple).

If I'm legally separated in D.C., can I pursue a divorce later?

Yes. The law provides that if a court grants a legal separation, the order may be expanded to an absolute (total) divorce if one of the spouses requests it and also proves that no reconciliation has occurred or is probable and that the spouses have continued to live apart for another year after the court issued the decree of separation.

On the other hand, if legally separated spouses ever reconcile, D.C. law provides that they can jointly apply to the court to have the decree removed and resume their marriage.

Do I qualify for a divorce in D.C.?

You might. First, you'll have to meet all of the following criteria:

  • Proof of Marriage: You must have proof that your marriage is valid. This means you must provide the court with an original or a certified copy of your marriage certificate. If you were married in D.C., you can obtain this document from the Marriage Bureau at the D.C. Superior Court. If you were married in another state, you'll need to check with that state's officials to find out where you can get the certificate.
  • Residency: You or your spouse must meet the residency requirement by living in the District of Columbia for six consecutive months.
  • Grounds: You must prove one of the two grounds discussed above.

Once you have met all three requirements, you are eligible to file for divorce in D.C.

How do I start divorce proceedings in D.C.?

D.C. divorces proceed along two different tracks: contested and uncontested cases.

Uncontested divorces are those where both spouses agree to be divorced and also agree to all the terms of the divorce, including custody, child support, alimony (if any), and the property settlement. Uncontested divorces move through the system more quickly, proving that there is always a benefit to reasonable, open-minded people negotiating with one another.

To start an uncontested case, you should first speak with an attorney, if possible. If you decide to continue, you or your spouse can file a "Complaint for Absolute Divorce," while the other person files a "Consent Answer." All the documents can be filed at D.C. Superior Court at the same time. Following that, a brief hearing will be scheduled; only the "plaintiff" (the spouse who filed the complaint) will have to appear to testify, although there are some exceptions. After the judge signs the divorce order, the parties will receive a copy in the mail and the divorce will be final 30 days after the order is stamped as "entered on docket." This could occur in as few as a few days after the hearing.

Contested divorces, on the other hand, occur when one or both spouses dispute any of the terms of the divorce. A contested divorce takes more time to work its way through the system, and it's important to consult with an experienced family law attorney if you're dealing with disputes about custody or financial matters.

A contested divorce begins when the plaintiff files a Summons and complaint, a "Vital Statistics Form," and a "Family Court Cross-reference Form." The court will schedule a date for a first hearing, and you will be offered the opportunity to work with a free mediation service. If you and your spouse still can't resolve your contested issues, there will be a trial and the court will make divorce decisions for you. The presiding judge will issue a copy of the final divorce order, which you'll receive in the mail. This order will also be final 30 days after it's stamped as "entered on docket."


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