Legal Separation in D.C. FAQ

If your marriage isn't working for you anymore, you might be wondering if divorce is the best way forward, or if legal separation would be a better option. Not everyone understands what legal separation actually means and why it might or might not be a good choice. Read on for answers to the most common questions on how legal separation works in the District of Columbia.

Is There a Difference Between Divorce and Legal Separation?

Yes. Although both legal processes change your marital status, only an absolute (traditional) divorce ends your marriage and gives you the freedom to remarry. A legal separation allows a couple to live independent lives and disentangle their finances and mutual obligations, but neither spouse is free to remarry unless the court converts the separation into a divorce (more on that below).

Divorce and separation do share some things in common. The process and steps for getting a legal separation are basically the same as for a divorce. Most importantly, the judge must rule on most of the same issues in a legal separation as in a divorce, such property division, alimony, and child custody and support.

Why Choose Separation Instead of Divorce?

Like most family issues, ending a relationship is a highly emotional and personal decision. There are advantages and disadvantages of legal separation. If couples aren't able to agree about the issues, getting a legal separation could be just as time-consuming and expensive as divorce.

Still, some couples have their reasons for choosing legal separation instead of divorce, such as:

• divorce is too permanent, and they hope there's a chance of getting back together
• one or both spouses have a religious, moral, or social objection to divorce
• legal separation is a way to try a "dry run" of divorce
• the spouses don't want to forfeit certain financial benefits of legal marriage.

However, if you're planning to get a legal separation so that one of you can stay on the other's employer-sponsored health insurance, you should check first with the employer or insurance provider. That's because some plans treat legal separation just like divorce for purposes of ending coverage for the employee's spouse. Learn what happens to health insurance after divorce, including options for getting new coverage.)

What Are the Requirements for a Legal Separation in D.C.?

Before you can get a legal separation in the District of Columbia, one spouse must have been a resident of the District for at least six months just before you start the legal process. (D.C. Code § 16–902 (2024).)

You'll need to file a complaint for legal separation with the court, along with some other standard forms and documents. If you don't have a lawyer, you should be able to download the forms from the D.C. Courts website or LawHelp.org/D.C.

The process for filing, serving, and responding to a legal separation complaint are essentially the same as when you file for divorce in D.C.

Do We Need to Live Apart Before Getting a Legal Separation in D.C.?

The District of Columbia used to require that before you could file for a legal separation, you and your spouse lived apart for a period of time (six months or a year, depending on whether you both agreed to the arrangement). But that's no longer a requirement. Now, you can simply start the process by stating on the initial paperwork that you "intend to pursue a separate life" from your spouse without getting a divorce. (D.C. Code § 16–904 (2024).)

What's a Separation Agreement, and What Should It Contain?

As with a divorce, you always have the option of agreeing with your spouse about the issues related to your legal separation. Your separation agreement should cover at least the following:

• how you'll divide your property and allocate your debts
• whether one of you will pay alimony to the other, and if so, how much and for how long, and
• if you have minor children, how you'll handle custody and child support.

If you're having trouble reaching an agreement about any of these issues, a mediator might help you resolve your disputes. Mediation in a legal separation works essentially the same way as divorce mediation. A neutral person who's trained in dispute resolution will meet with you and your spouse and help you find solutions that work for both of you.

If mediation doesn't work (or one of you resists the process), you'll need to go through essentially the same process as in a contested divorce, which can involve formal discovery, pretrial motions and hearings. And if you aren't able to reach a settlement at some point in the process, you'll need to have a trial.

Can We Change Our Minds About the Legal Separation?

Once the judge issues your legal separation decree, you're free to live a life independent from your spouse. But you may ask the court to change your status:

• Revocation. If you get back together, you may ask the judge to revoke your legal separation. However, both of you will need to file a joint application for a revocation.
• Conversion to divorce. If you obtained a legal separation but later decide that you actually want a divorce, you may apply to have it "enlarged" to an absolute divorce. You'll need to serve your spouse with the application. The judge will convert your case to a divorce if you can demonstrate that the two of you haven't reconciled, and the separation continued without interruption for at least a year (or six months if both spouses agreed to it).

(D.C. Code § 16-905 (2024).)

Do I Need to Hire an Attorney for a Legal Separation?

If you and your spouse can agree on all the issues in your legal separation, either on your own or with a mediator's help, you can probably get through the process without hiring a lawyer. But it's usually a good idea, if possible, to have an attorney write up your separation agreement—or at least review it and give you independent advice—to make sure that you haven't given up any of your legal rights.

But when you haven't been able to reach a complete agreement, it can be risky to go through a contested legal separation without representation and expert advice from an experienced family law attorney. You should at least consider speaking with a lawyer to get an objective opinion on your case—including whether legal separation is the best option for you.