Many people that come into our office hoping to “legally separate” from their spouse are unsure what being legally separated actually means. In many cases, when we explain what a legal separation is, people decide that a legal separation is not what they are looking for. In many cases, they opt instead to file for dissolution of marriage and file temporary orders during the pendency of the proceedings. This article attempts to provide some basic information on the legal separation process, and why some people choose it over divorce.
The legal separation process is governed by RCW 26.09. Much like the dissolution of marriage process, the legal separation process begins with the filing of a petition. The difference between the two petitions is that one asks for the court to dissolve the marriage, while the other requests that the parties be declared legally separated. The legal separation process includes the same phases as dissolution process: filing of initial pleadings, temporary orders (in some cases), discovery, (sometimes) mediation or arbitration, and finally, if the parties cannot otherwise agree, a trial. Also like the dissolution process, the legal separation process culminates with a decree and other associated orders.
One major difference between the legal separation and dissolution of marriage processes is that in the dissolution of marriage process there is a ninety day waiting period. This means that ninety days from the date of the filing of the petition have to pass before the dissolution can be finalized. There is no waiting period for a legal separation.
Another important difference is that at the end of the legal separation process, parties are still married. The marriage has been reduced to little more than a title, but even that title can have an impact on the parties’ lives. Many people choose legal separation instead of divorce because of religious reasons. Other people choose legal separation over divorce for a number of other reasons including medical insurance benefits, military benefits, or immigration status. If you are seeking a legal separation for one of these reasons, you should speak with an attorney about your case so that you can determine whether the rights or benefits you are trying to protect will actually be protected by a legal separation instead of dissolution.
Yet another important difference is that someone who is legally separated instead of divorced may not remarry. Because the parties are still legally married, they are not eligible to marry another person.
Importantly, six months after a decree of legal separation is entered either party can ask the court to convert the legal separation into a decree of dissolution ending the marriage. If this happens, the court will grant the petition and convert the legal separation to a divorce.
While there are many differences between legal separation and dissolution of marriage, there are also many similarities. In both types of cases the parties or the court (or a combination of the two) divide assets and debts, determine child support and spousal maintenance, and develop a parenting plan.
If you are considering a legal separation instead of a dissolution of marriage you should speak with an attorney about the benefits and disadvantages of making this choice in your circumstances. We are prepared to help Seattle area clients with their legal separation or dissolution questions, issues, and/or cases. Please contact us today.