Should I Get a Legal Separation?

Often clients coming in for their initial consultation with us want to know whether they should file for a Legal Separation now, then get divorced later.  When I ask a few questions, I find that there is a lot of misunderstanding about what a Legal Separation is (at least in Washington State).

A Legal Separation is not so much a step towards a divorce as an alternate path. Both a Legal Separation or a Decree of Dissolution ( a divorce) will divide property and debts, provide for a parenting plan for any children of the marriage, set child and spousal support, and enter restraining orders if needed. The main difference is that in the Decree of Legal Separation, we leave out the one line that says “the parties are now divorced”.  Both processes are started by filing a petition with the court, and both will end in a trial if an agreement on the terms is not reached out of court.

In terms of practicality, what this means is that a person who is legally separated cannot remarry without first converting their legal separation into a divorce. At least the process of doing such a conversion is straightforward. While there is a 6 month waiting period after a legal separation before it can be converted, once that period has passed, and since all of the terms have already been settled, it is just a matter of filing a short motion with the court requesting the divorce.

In some counties in Washington the courts also do not require the 90 day waiting period after filing the petition before agreed final orders can be entered. That waiting period is always required for divorces.

Some couples want to do a Legal Separation rather than a divorce because they think they may still reconcile and get back together. I try and discourage that. If a couple gets Legally Separated and then reconciles and moves back in together, they have a very murky legal status. They are married and living together, yet they are not a community, not a legal couple. The only way I know of for them to get back to a clear legal status as a traditional married couple is to go ahead and complete the divorce and then remarry. Therefore if a client thinks they may reconcile, I advise them to file for divorce rather than Legal Separation, and then if they do reconcile they can make a conscious decision whether to remarry again or to live together as two single people. The other option is to hold off on filing anything, enter into a separation contract, and file for divorce later if they decide they will not be reconciling.

This of course raises the question, why would anyone want to get a Legal Separation? One reason I am aware of is where people have religious beliefs that forbid them from being divorced, but also no longer wish to live as a couple, i.e. they want to be as good as divorced without being divorced. Another reason is that some employers will allow a legally separated spouse to still be carried on medical benefits as a spouse. This is important to some clients who may have trouble obtaining medical insurance on their own.

For more information about this and other issues see our Question and Answer section of the website.