As a brand new attorney, I have yet to become an expert in the field of family law, but it is my hope that my fresh eyes may prompt readers to look at long-accepted legal ideas and practices with a critical eye. During a new client consult meeting recently, the attorney advised the client that the attorney could not file for divorce, because the appropriate separation period had not run.
All three local jurisdictions (Maryland, Virginia, and Washington DC) have “no fault” grounds for divorce that require a certain length of separation prior to a Complaint for divorce. In Virginia, that time period can be six months or a year, depending on whether children are involved. VA Code § 20-91(A)(9)(a). Maryland requires one year of separation before couples may obtain a no fault divorce. Md. Family Code Ann. § 7-103(a)(4), In DC, if the separation is mutual and voluntary, the period can be just six months. If the separation is not mutual and voluntary, the period is one year. D.C. Code § 16-904(b)(2).
In this particular case, it was clear the couple would not reconcile. Still, they must wait the required period before getting any relief from the court. These waiting period requirements developed with the introduction of no-fault grounds for divorce as a way to reduce hostility by eliminating the need to point a finger at the wrongdoer. 1991 BYU L. Rev. 79, 83. The policy goal behind the waiting period is ensuring that couples have really considered the decision to divorce and giving them the chance to reconcile before judicial resources are expended. While the policy is understandable, it is paternalistic to assume that adults who have reached the point of asking their spouses for a divorce and reaching out to a divorce attorney, haven’t already thought long and hard about it. Not every state requires couples to sit on their hands and wait to ask the court for relief. California, for example, does not require couples to live separate and apart although it does allow a court to continue the divorce matter for 30 days if it seems the couple may reconcile. Cal. Fam. Code § 2334(a).
There is a tangible downside to these waiting periods, particularly in these economic times. Maintaining the cost of just one home is expensive. Requiring couples to live “separate and apart” for a significant amount of time puts an incredible financial burden on couples already under stress. While it might be easier financially for both spouses to move out into smaller homes, this is often harder on children. When children are involved, it’s usually best for the custodial parent to remain in the family home with the children to limit the disruption in their lives. Maryland, and D.C. in some very limited circumstances, may consider spouses to be separated within the same home if they live completely separate lives, i.e., they do not share a bedroom, share meals, spend family time together, engage in sexual activity, etc., but this can be difficult to prove, and even more stressful for children. Either way, imposing this waiting period on couples wishing to divorce often drags out the inevitable and keeps families in states of uncertainty, waiting to move on with their lives.
In my opinion, it is time to reexamine the waiting period requirements and determine how many couples actually do reconcile while “separate and apart.” Unless reconciliation can be correlated with the waiting period, the requirement of living separate and apart should be eliminated.
 Maryland and Virginia also have fault grounds that in certain circumstances allow parties to circumvent the separation requirement, but as these grounds were not applicable to this particular case, they are not the subject of this post.