Legal Separation: Different Than Divorce

by Apr 9, 2021Uncategorized0 comments

To understand how a legal separation differs from a divorce, you need to be aware that a legal separation is a court’s order that addresses property division, debts, spousal support, custody, visitation and child support.  A divorce also addresses property division, debts, spousal support, custody, visitation and child support.  So, what is the difference?  Simply put, a legal separation does not end the marriage but a divorce does end a marriage.  

Filings and Paperwork

There is a filing fee for a divorce or legal separation.  Filing fees for a divorce or legal separation with children will cost more than the filing fee with no children.  Your attorney can provide you the filing fee cost once it is determined what county you will be filing the action.  

The standard required domestic relations forms for a divorce, are the same forms that are required to be filed in a legal separation.  Each county has the standard forms as set forth by the state supreme court and each county may have a form or two that are specific to that county.  

The length of time that it takes to complete a legal separation and divorce will be determined by the court’s timetable/docket and follow the same procedural rules.    Legal separation actions with no children can take up to one year and legal separations with children can take up to eighteen months.        

Why chose Legal Separation over Divorce?

Some common reasons that people seek a legal separation, rather than a divorce, are for health insurance benefits, tax benefits, religious beliefs, a desire to keep the family together for the sake of the children/grandchildren or simply an aversion to divorce.  

If health insurance is the sole reason that one wants to seek a legal separation rather than a divorce, in order to remain on their spouse’s health insurance or their spouse to remain on yours, then it might be wise to check with the health insurance provider directly before deciding if a legal separation is right for you.  In years past, health insurance providers stated that a legal separation was still a marital state that allowed spouses to remain covered on the health insurance plan.  Health insurance companies have now taken a completely different position and are now changing their policies to exclude legal separations and terminating the health care coverage of the spouse in a legal separation.  If considering a legal separation solely on the ability to maintain health insurance coverage for yourself or your spouse, it is wise to check with your health care provider directly to understand their position on coverage in the event of a legal separation. 

Is there a residency requirement before filing for a legal separation?

There are people that are under the misconception that you have to obtain the legal separation in the same country, state or county in which you were married, which is untrue.  You can proceed with a legal separation in the state and county you reside, as long as you meet that state’s residency requirements before the filing of the Complaint for Legal Separation.  In Ohio, you have to be a resident of the state for 6 months prior to filing the Complaint for Legal Separation.  

What are the grounds for a legal separation?

In Ohio there are nine causes (grounds) to proceed with the legal separation (or divorce): 1.) if either party had a living spouse at the time of the current marriage; 2.) one spouse’s willful absence from the marriage for one year; 3.) adultery; 4.) extreme cruelty; 5.) fraudulent contract; 6.) gross neglect of duty; 7.) habitual drunkenness; 8.) imprisonment of one spouse; or 9.) either spouse received a divorce outside of the state of Ohio.  You will need to discuss your grounds with your attorney.

What occurs during the legal separation process? 

The court will schedule the legal separation for various court or telephone conferences, including pretrial(s), a temporary orders hearing (if necessary), a status conference (if necessary), mediation (not in all cases) and trial.  This is not an inclusive list and each case differs in its complexities and nuances.     

During the pendency of the legal separation process, there is time that allows each party to conduct discovery.  The discovery is depositions, obtaining records through subpoenas, interrogatories, admissions and request for production of documents.  Discovery is basically a time period in which the parties can gather information needed to make an informed decision as to their marital assets, debts, incomes, custody/visitation, spousal support and child support.  

What happens once the legal separation is completed?

Once the parties have received a court’s order for the legal separation, the parties are still married, however, they receive a court’s order that determined a division of assets/debts, spousal support (not in all cases), custody, visitation and child support. 

What happens if you and your spouse decides that you want to end the marriage after you obtained the legal separation?

Because you and your spouse have resolved the major issues in the legal separation process, if you change your mind and want to end the marriage, a petition for dissolution is filed and the court’s order on the division of assets, spousal support, custody/visitation and child support is incorporated into the dissolution.  You and your spouse will still abide by the court’s timetable/docket as to ending the marriage, but the process should be significantly smoother due to having a separation agreement already in place that can be incorporated into the dissolution.

Do I need an attorney for a legal separation?

It is encouraged that you seek legal counsel for the legal separation, rather than attempting to navigate the process on your own.  An attorney that is knowledgeable in the court’s process and required filings is necessary to achieve the legal separation that protects your best interests.  

If you are seeking a legal separation, consider contacting Kirkland & Sommers Co. LPA.   Our firm has five (5) attorneys on staff that only practice in the area of divorce and family law.  With over 100 years of combined experience with the courts, you will be guided by the some of the most experienced attorneys in the Butler County and the Miami Valley area.