Often, parties may be experiencing marital discord, but are not ready to file for divorce. For these parties, there is another option; namely, legal separation. A legal separation is filed through the Court system, but does not divorce the parties; rather, it provides a separation period and any incidentals that accompany that separation.
In order to begin the process/proceedings for a legal separation, the party requesting must file a verified petition (signed by the filing party) that sets forth several requirements. For example, the petition shall include the residence of each party, the date of marriage, the date of separation, and the names and information of any children of the marriage1.
This information contained in the petition is similar to the information required in a divorce petition. However, it should be noted that if a divorce petition is filed and pending, one cannot file a legal separation petition in response or as a new action2.
The Court will then review the legal separation petition, and can file a decree of legal separation as long as two (2) findings have been made by the Court. First, that the conditions in or circumstances of the marriage make it currently intolerable for both parties to live together and second, that the marriage should be maintained3.
Once these findings are made and a decree of legal separation is made, the parties remain married, but can live separately and have a court order as to issues such as child support and bill payments. Instead of having to work these issues out together, the parties can rely on the decree from the Court to control these issues during the separation.
The legal separation cannot go on indefinitely, however. At the most, a Court can decree the legal separation can be in place for a period not to exceed one (1) year if all of the conditions/findings are met. After one year, the legal separation is ended.
The parties then have several options. They can reconcile and continue to be married, they can continue with the terms of the legal separation outside of the Court, or the case can be transferred into a divorce action. From there, the parties will move forward in whichever avenue they choose.
Legal separation is a fairly rare path in family law. If you are considering this option, it is best to consult with an attorney to review your rights and options. We hope that this blog post has been educational about the general nature of legal separations. This blog post was written by attorney, Jessica Keyes.
