A lot of people come into my office believing they have to move out before they can file for divorce.
Some think they need to be separated for six months. Others have heard they have to wait 18 months. Neither is generally true.
You do not have to live separately before filing for divorce in New Jersey. You and your spouse can still be living under the same roof when the divorce begins. In fact, you can be living in the same house, sitting on the same sofa, and even sleeping in the same bed.
What matters is the legal ground you use for divorce, not whether you have different addresses.
What About the Six-Month Requirement?
This is where much of the confusion comes from. Most New Jersey divorces today are filed based on irreconcilable differences.
To use this ground, irreconcilable differences must have caused the breakdown of the marriage for at least six months, with no reasonable prospect of reconciliation. But six months of irreconcilable differences is not the same thing as six months of physical separation.
You don't need two homes. You don't need separate leases. And you don't need to prove that one spouse moved out six months ago. The requirement concerns the breakdown of the marriage, not where each spouse has been sleeping.
Where Does the 18-Month Separation Rule Come From?
New Jersey does have a separate ground for divorce based on spouses living separate and apart in different homes for at least 18 consecutive months with no reasonable prospect of reconciliation. But that is simply one ground for divorce. It is not a waiting period everyone must satisfy before filing.
Before irreconcilable differences became available in New Jersey, other grounds played a much larger role in divorce cases. Today, most people do not need to wait 18 months simply to establish that their marriage is over.
If you already satisfy the requirements for irreconcilable differences, you may be able to file while you are still living together.
Can You Keep Living Together During the Divorce?
Yes. For some couples, continuing to live under the same roof for a period of time is the most practical option.
Maybe neither spouse can afford to immediately maintain a second home. Maybe you don't want to disrupt the children's routines yet. Maybe you are waiting to determine what will happen to the marital home. Or maybe finding appropriate housing simply takes time.
Living together while getting divorced can certainly be uncomfortable, but it does not automatically prevent the case from moving forward. What I would not recommend is assuming that you have to move out simply because you have decided to file.
Think Before You Move Out
Moving out of the marital home can be an important practical decision, particularly when children and significant household expenses are involved. Before you pack your belongings, think about what happens next.
Where will the children stay? What will the parenting schedule look like? Who will pay the mortgage, utilities, and other household expenses? Can you afford to support two residences? What access will you have to the home and your belongings?
There may be perfectly good reasons to move out. But "I thought I had to leave before I could file for divorce" should not be one of them. Understand the legal and financial consequences first, then make the decision that makes sense for your circumstances.
If you are considering divorce and want to understand the process before making decisions about your home, children, finances, or future, my free Divorce Smarter Course explains the New Jersey divorce process in plain English.
Until next time,
Steve