By: | Did You Know? , Divorce 101

A Separation Agreement is an agreement on all the issues you and your spouse need to resolve before getting divorced, such as the division of marital property (assets and debts), child custody, visitation and support issues, and Temporary Maintenance and Post Divorce Maintenance (commonly known as ‘alimony or spousal support’), if any. The separation agreement must be signed and notarized by both you and your spouse. By having a separation agreement, the spouses are able to decide everything and have total control over the outcome of the divorce proceedings.

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If you proceed with a divorce based on a written separation agreement, the agreement can be “converted” into a divorce judgment so that the terms of the agreement become part of the divorce judgment. You can start the divorce action on these grounds after you and your spouse have been living separate and apart for at least one year from the date the Separation Agreement was signed (“conversion” divorce.) Provided the court approves of the agreement, a conversion divorce is usually an uncontested proceeding and no hearing is generally required.

If you have a Separation Agreement that is to form the grounds for divorce, the ORIGINAL agreement must be filed with the court prior to, or at the same time as, the divorce action is started. Also, the parties must have been living separate and apart for more than one year after signing the Separation Agreement in order to meet the requirements of the Separation Agreement grounds for divorce.

Under what circumstances can I file for a divorce based on the fact that my spouse and I are separated?

In order to file for divorce when you are separated from your spouse you must have been living separate from your spouse for at least one full year:

(1) SINCE the signing by both parties of a written Separation Agreement; or (2) SINCE your spouse left you; or
(3) SINCE your spouse denied you access to the marital residence; or
(4) SINCE your spouse your spouse refused to have sex with you.

Any of the above is necessary in order for the separation of the parties to constitute a valid basis for a divorce.

If you are living with your spouse but your spouse has refused to have sex with you for at least one year, you can start divorce proceedings based on “sexual abandonment” grounds. The date of sexual abandonment is the date that your spouse began refusing to have sex with you, even though you were living together at the time.