The D word can be devastating to many married people. It almost seems that if you say the word “divorce” there will be no turning back. Often a person will contact me to discuss a legal separation when they really are intending a divorce but divorce is too fearful and final sounding. It seems to be a first step measure. I find that there is wide misunderstanding of the term.
To add to the confusion, there is a difference between “being separated” and a formal decree of separation. A couple separates when one or both of the parties determine they no longer want to continue in the marriage and they part ways and set up individual residences. Sometimes this may merely be a cooling off period and the parties reconcile. Other times this is a prelude to filing for divorce. Income earned, debt incurred and property obtained is considered separate property if acquired after the date of separation.
A formal decree of separation is handled much like a divorce (technically called dissolution) The property is divided, there is a parenting plan and child support orders are made. The difference between the two decrees is that the marriage is not dissolved and the parties may not remarry. The most common reason individuals have for obtaining this decree is for religious reasons.
If a petition is filed for legal separation, it can be converted to a dissolution. Either party can request this. A dissolution requires a ninety day waiting period between filing the petition and obtaining the decree. A decree of legal separation has no waiting period. If one party wants a legal separation and the other wants a divorce, there will be a divorce.
I often remind my clients that just because they filed a petition to dissolve their marriage does not mean the divorce is automatic. The parties can withdraw the petition at any time before the final decree is granted. One judge relayed to me that a couple withdrew the petition in front of him as they were finalizing the divorce!
It is important to consult with a family law attorney to assess your options if you or your spouse is considering a marital separation. A family law attorney can explore alternatives for you and help you preserve your rights. I family law attorney will not try to talk you into a divorce and will help you consider all alternatives.
I am a strong proponent of mediation or collaborative divorce. Even when considering only a separation, this process can help you make good decisions for your children and your financial future. A cooperative divorce or separation helps you save time, money, emotional trauma and preserve your privacy.