Mark and I have noticed an increase of calls lately from women looking for information about a legal separation. It is clear from the conversations that there is a lot of confusion about legal separations: how to get a separation, why to get a separation, and the legal consequences of the separation.
I always thought getting separated was the first step in getting divorced. Admittedly, before I went to law school, most of my knowledge about getting a divorce I learned from watching Susan Lucci as Erica Kane on All My Children. After all, Erica was married and divorced 11 times.
The truth is that separations and divorces are two distinct legal proceedings. While a legal separation can be transferred into a divorce, it is not necessary or required to get a legal separation before one gets divorced. The following is a description of a legal separation, information about the differences between a legal separation, divorce and living apart, and some guidance about when a legal separation may be appropriate.
A legal separation does not simply mean two spouses are living apart. Of course, one spouse can leave the home at any time during the marriage, but just because a couple is living separately doesn’t mean they are legally separated. A legal separation requires a judge’s file stamped official signature, just like in a divorce.
In order to be granted a legal separation, parties must enter into a separation agreement and possibly a parenting plan that addresses all of the issues of the separation such as spousal support, child custody and visitation, child support, property division, and/or payment of marital debts – just like in a divorce. Every issue that by law needs to be resolved in a divorce needs to be resolved in a legal separation.
Whether negotiated between the two parties, with attorneys, or (if an agreement cannot be reached) by the judge, a legal separation creates an enforceable court order. In other words, a legal separation is a legally binding agreement. If a party doesn’t comply with the terms of the separation agreement, he or she can be held in contempt – just like in a divorce.
To the contrary- if a couple lives apart without getting a legal separation, there is no oversight as to how each party must behave when it comes to issues of finances, property division and parenting time.
- If a couple is married but living apart, each party is still responsible for any debt the other may acquire during this time.
- If a couple is married but living apart, one party can abdicate all parenting responsibilities to the other.
Thus the big advantage to getting a legal separation, rather than simply living apart, is that your financial, property and parenting rights are protected by a court order.
While there are a lot of similarities between a divorce and a legal separation, the legal rights of a divorced couple are very different than those of a couple that is legally separated. After a judge grants a legal separation a couple is considered neither married nor single. You cannot marry another person if you are just legally separated. You cannot live together when you are legally separated and still receive tax advantages of spousal support or of filing jointly.
So how does one choose between a legal separation and a divorce? Timing might be an issue. Unlike when filing for a divorce in Ohio, you do not have to live in the State for six months prior to the filing of a legal separation nor do you have to live in the county where you file for 90 days. Often a couple chooses a legal separation for religious reasons or because they want to preserve health insurance for their ex-spouse. Many want a cooling off period, but with court ordered structure and separation of their assets and liabilities. Others want this option because they can’t accept the idea that they are divorced or do not want to “hurt” their ex-spouse, but do want to resolve all the financial entanglements. For whatever reason it is obtained, the parties may later convert their legal separation into a divorce or may remain legally separated indefinitely.
I think sometimes it is easier for people to consider a “legal separation” rather than a divorce because for many women a legal separation feels less final and less permanent than a divorce. When clients come in asking about a legal separation, it is important for a lawyer to explore the reasons behind the request. If a client has religious beliefs that don’t allow for divorce or if she believes there is a chance she will ultimately reconcile with her spouse, then a legal separation makes sense. However, if a client is seeking a legal separation in order to protect her spouse or children, I can’t help but gently encourage a divorce. I believe in living and stating the truth – especially when there are children involved. Obtaining a legal separation when what you really want is a divorce, keeps everyone in limbo and gives hope to children and spouses when there really is none. Although it is often very difficult, the sooner all parties admit and confront the truth of the marriage, the sooner there is acceptance, healing and the parties can move on.