A legal separation is a court-ordered arrangement whereby a married couple lives apart, leading separate lives. A legal separation is a popular alternative to a divorce when the parties are unsure of the state of their marriage but want to establish financial boundaries and responsibilities, such as separation of assets, custody of dependents, and child support. However, for those who want a divorce, a legal separation may be required before a judge grants a divorce.
How a Legal Separation Works
Although the reasons for seeking a legal separation vary, there are some common ones worth noting. Some religions prohibit married couples from divorcing; a legal separation grants most of the benefits of a divorce without compromising religious tenets. Also, those unsure of their marital future may opt for a legal separation, hoping for reconciliation. Couples with minor children often cite that a legal separation is more ideal for their children than a divorce. Although the parents function as a separate unit, the family may remain together, maintaining stability and order, for the most part. A few other reasons for opting for this arrangement is to retain health and retirement benefits. Many couples choose to separate without a court order as it is simpler and avoids costly legal proceedings. The growing trend towards informal separations and no-fault divorces is making the formal legal separation process increasingly rare. Once the actual date of separation is determined, it freezes a spouse’s ability to freely spend money from a joint credit card or bank account. It also limits control over other assets like properties and vehicles. Each spouse becomes legally responsible for his or her debt after the date of separation. It’s important to treat a legal separation as seriously as a divorce as both are orders of the court, containing duties and obligations that each party must legally uphold. If the couple later divorces, judges may consider the details of the separation agreement when ruling on a divorce
Benefits of Legal Separation
For some, reaching their 10th anniversary is a monumental occasion, but it is also a milestone when future benefits are impacted. If deciding to part ways, a legal separation may keep benefit entitlements intact. For example, military spouses must remain married for a decade to take advantage of the benefits provided by the Uniformed Services Former Spouse Protection Act. Also, remaining married for at least 10 years means being able to take advantage of certain spousal social security benefits. If at retirement, your spouse will draw more social security than you, it is beneficial to remain married for a minimum of 10 years so you can draw a larger sum by drawing on your spouse’s social security retirement. In spite of the pain from a split, sometimes a legal separation makes sense when a divorce doesn’t. For example, a legal separation can be temporary, while a divorce is permanent. Some couples legally separate when trial separations don’t work. This may be the last attempt at saving their marriage. Additionally, a legal separation is often more cost-effective than a divorce, and many parents find that their children are better able to adjust to a divorce if they legally separate first. A legal separation, is a court order that mandates the rights and duties of a couple while they are still married, but living apart; in a divorce, the spouses are no longer married. Although legal separations aren’t very common, they can be helpful especially while the spouses work through any personal or financial issues affecting the marriage.
Legal Separation vs. Divorce: Differences
There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:
• Health care/other benefits: Legal separation allows for the retention of health care and other benefits including certain social security benefits that terminate with a divorce.
• Marital status: Legal separation allows you to retain your marital status, meaning that you’re not free to marry another; once you’re divorced, you can remarry.
• Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren’t considered next of kin.
• Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
• Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
• Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.
Legal Separation vs. Divorce: Similarities
In both divorce proceedings and in the proceedings for legal separation, the court decides the following:
• Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a “motion pending litigation”).
• Child custody
• Child visitation
• Property division (both legal separation and divorce property division is based on the couple’s situation and how it relates to the property)
Living Separately and Impact on Property Division
Circumstances may arise that lead to couples living apart with no intent to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.
Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and therefore, likely marital property.
Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children’s care.
What are the grounds for divorce in Utah?
Utah is considered a “no fault” state. This means that you do not need the consent of your spouse to obtain a divorce, nor are the reasons why you want a divorce considered in granting the divorce. In Utah, the courts can enter a divorce decree upon showing that:
• One of the parties has lived in the state and county for three months prior to the commencement of the proceedings;
• Allegations of irreconcilable differences in that the parties have been unable to resolve their marital problems, making continuation of their marriage impossible;
• And those 90 days or more have elapsed since the court acquired jurisdiction over the other party either as a result of process or by the other party entering appearances.
Do I really need to hire an attorney?
It is possible to complete your divorce without representation by an attorney. However, it is not recommended as this process is emotional and often more difficult than originally expected. An attorney can ensure that your interests are protected during the process as well as give you valuable advice on the overall proceedings. The long-term benefits of knowing and understanding your rights and having an advocate on your side will be well worth the upfront costs of hiring a professional.
Can I get maintenance or will I have to provide maintenance to my spouse?
Maintenance, also called alimony or spousal support, is never a guarantee in divorce cases as there is no set formula for determining the length or amount of the awards. The court will look at all relevant factors in determining the appropriateness of a maintenance award, including:
• The duration of the marriage.
• The standard of living established during the marriage
• The age and the physical and emotional condition of each party.
• The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each.
• The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
• The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party.
• The responsibilities each party will have with regard to any minor children they have in common.
• All sources of income available to either party, including income available to either party through investments of any asset held by that par
• Everyone knows what a Utah divorce is.
• Divorce ends a marriage. After a divorce, you’ve split everything, and you’re done as a couple.
• Not everyone knows what a Utah legal separation is.
• A legal separation doesn’t end a marriage. Think of it as something that puts a marriage on hold temporarily.
• A legal separation deals with all the same issues as a divorce: child custody, alimony, child support, what to do with the home, etc.
• What is doesn’t do is deal with those issues permanently.
• This is because a Utah legal separations only last 1 year. That means if you want the separation to last longer, you need to go back to the court and ask that it be extended.
• Utah Legal Separation Law
How to File for a Legal Separation
Step 1: Confirm Your State’s Residency Requirements
First, you must meet your state’s residency requirements. Residency requirements are the same for legal separation and divorce. To learn about your state’s residency requirements, check your state’s divorce laws. For example, in Utah, a married couple can file for legal separation if at least one of you lives in the state. Similarly, in the case of domestic partnerships, as long as the domestic partnership was registered in Utah, both parties may file for legal separation even if you don’t live in the state. If your domestic partnership isn’t registered in Utah, one of you must live in the state in order to file for legal separation.
Step 2: Move to File for Separation Petition
If residency requirements are met you will then file a legal separation petition with the court. You may do this by contacting an attorney, using online resources (such as your state government’s website) or contacting your court clerk and filing on your own, otherwise known as pro se. Note that a fee is required to file your legal separation forms. In Utah, for example, the filing fee is approximately $435, though fees vary by county. If you meet the state’s residency requirements, file for separation in the county where you live.
Step 3: Move to File Legal Separation Agreement
Along with your petition for a legal separation, you will file your legal separation agreement. Make sure the agreement covers all issues such as child custody, child support, visitation, spousal support, how marital assets (like a home or any vehicles you purchased together) might be distributed, who lives where, who pays what debts, any rules and guidelines pertaining to dating other people; which may be considered adultery in some states.
Step 4: Serve Your Spouse the Separation Agreement
If you and your spouse are not filing for separation jointly you will need to have your spouse served once you have filed your petition for legal separation. As with a divorce, your spouse will have a certain period of time (typically 30 days) in which to respond to your petition for a legal separation.
Step 5: Settle Unresolved Issues
If your spouse does not agree to the provision set forth in the petition, they have a right to file a counter-petition. If this is done and you can’t come to an agreement via mediation or with collaborative law, you will have to go before a judge to settle the issues you were unable to agree upon. In some cases, a legal separation can be as complicated as obtaining a divorce.
Step 6: Sign and Notarize the Agreement
If your spouse agrees to the provisions in the petition all you will need is for both spouses to sign and notarize the agreement so the court clerk can enter it into the court records for approval by a judge.
Step 7: Organize Your Records and Execute the Agreement
Once a judge has reviewed and signed your legal separation agreement it will be filed and on record with the court clerk. Once it is on record with the court you will want to be sure to keep a copy for your own records and follow the guidelines set out in the separation agreement.
Legal Separation Lawyer
When you need to get a legal separation, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506