What is a Legal Separation?
Legal separation is far less common than divorce, but those who do not want to end their marriages may find it an attractive option. A legal separation agreement can address many issues similar to those typically addressed in a divorce: custody and parenting time, property division, child support, spousal support/alimony, and more. The primary basic differences between legal separation and divorce are 1) you remain legally married if you are separated, whereas a divorce establishes that the marriage has ended, and 2) many people choose legal separation as the first step toward eventual divorce.
Not everyone who legally separates will later go on to divorce, but it allows couples to establish many important matters while taking the time to determine whether they want to end their marriages.
Legal separation is often chosen when a couple is already living apart and needs to determine how to divide property and assets, make financial arrangements, share child custody, and more, but is not prepared to face the prospect of divorce. This may be for religious, cultural, or other personal reasons. Sometimes legal separation is more practical than immediate divorce. For example, if the couple’s health insurance coverage requires continuing to be married , it may be preferable to legally separate rather than divorce, at least for a period of time.
The requirements for legal separation in Washington, DC are similar to those for filing for divorce. First, one or both spouses must meet the state’s residency requirement, which is six months for at least one person (but only in certain circumstances) when filing for either separation or divorce. Then the person seeking to separate/divorce files a petition and serves the other spouse with a summons and a copy of the petition. If all goes well, the court will issue a degree of legal separation when it determines that the relationship is irretrievably broken. If one party wants the legal separation and the other does not, a judge will issue the decree of legal separation if a) the person seeking the separation has been living away from the other for at least one year prior to filing and the other does not object or b) after a hearing, the judge decides that the separation is warranted.
There seems to be a common misconception that legal separation is less complicated than divorce, but this is simply not the case. Fortunately, Washington, D.C. attorneys who are experienced in the legal separation process can walk you through the procedure, helping you avoid making costly mistakes.
How Does Legal Separation Work in DC?
The process of obtaining a legal separation in the District of Columbia begins by filing a complaint with the Superior Court of the District of Columbia. This document states that the marriage is broken down beyond repair and that the parties should be judicially separated. To get a court to grant such a separation, however, you must also allege in your complaint that it is proper for the court to grant the separation — in other words, that the separation is in the best interest of the children, if you have any, or that it is in the interest of justice, if you do not. The court then has discretion to order a legal separation, or to deny the request.
Legal separation turns out to be more than just a "trial separation". It creates a judicially-recognized change in the parties’ relationship. It even creates a foundation on which a complaint for divorce can be filed at a later date. A decree of legal separation can be made the basis for a divorce so long as no new acts of wrongful conduct occurred after the decree of separation was entered.
After the complaint, the person who filed the action must prepare a "request to allow an amendment to the complaint (for separation) and a notice to defend". In this document, the court grants the right to amend the legal separation complaint by adding a request for divorce. The notice informs the defendant that the plaintiff is seeking a divorce. When the defendant is served with process, they will see both requests and understand that the parties are seeking a divorce upon favorable disposition of the separation complaint.
Once a party receives a summons and complaint ("service of process"), they have 21 days to respond. Once served, the other party must file an answer to the complaint, a preliminary motion for any relief from the court, and a counterclaim. Twenty one days after the answer is filed, the parties will participate in an informal order of protection conference with a judge. If the separation is contested, a hearing date will be set. If the separation is uncontested, meaning neither party objects to the separation, an uncontested hearing date for the separation decree will be set.
It is important to note that the judge cannot decide issues that were not part of the separation complaint. For instance, if at the time of the legal separation, the parties are able to move out of the marital home and one spouse remains in that home, and then one spouse wants to sell the home as part of the divorce complaint, the judge does not have the authority to decide the house issue until the divorce.
Requirements to Obtain Legal Separation
You do not have to be divorced to separate from your spouse. If you and your spouse plan to live apart you may consider legal separation. Counsel can help you and your spouse with the required paperwork to file in court.
One of the advantages of legal separation is that you do not have to have a reason to obtain a legal separation. However, the court requires that the separation be permanent and that one party have resided in the District of Columbia (D.C.) for at least six months prior to the separation. Therefore, if you intend to live apart from your spouse, but still obtain legal status as a result of the separation, at least one of you must have resided in the D.C. for at least six months before separating.
If you and/or your spouse have lived outside of the D.C., but have moved to the D.C., and separated there, you may want to consider obtaining a divorce, rather than a separation. This will save you both time and resources in the long run. Additionally, if you and your spouse are separated in another state and you or your spouse intends on obtaining a separation in the D.C., than you may also incur additional costs of having to re-do the separation laws of the state in which the separation was obtained.
Legal Separation versus Divorce
Unlike divorce, legal separation does not permanently end the legal status of a marriage, leaving the door open for couples to reconcile in the future. Through legal separation, married couples can legally live apart and protect their respective interests. It addresses similar issues as divorce, such as child custody and support, financial liability for marital debt, asset division and protection of marital assets until the issues are resolved through negotiation or court order.
In fact, many legal separations result in divorce when attempts at reconciliation fail. Except for the legal title of "separated" or "married," the legal status of each spouse does not change. A couple may seek legal separation to address the small things in their lives and to temporize while they sort out the bigger issues in their marriage.
For many couples, legal separation feels like an easier first step towards a permanent change in marital status without making all significant life changes at once. Some couples rely on legal separation as a waiting period before divorce, while others view it as an opportunity to resolve issues peacefully through negotiation.
So what are the pros and cons of legal separation vs divorce? For many, the biggest benefits are that the parties do not lose the benefit of spousal benefits while they are separated and that they do not have to permanently divide their property. In the District of Columbia, legal separation is required if a couple wants to seek a divorce based on the no-fault premise that they have been living separate and apart for six months with the intent to be divorced. The primary downside is that the legal status of living together is probably the same, absent a provision in the agreement that prohibits either party from reestablishing the parent/child relationship upon a written agreement.
Financial Aspects of Legal Separation
When you think of the word "separation," you probably think about being entitled to everything that you currently have, right? Well, that’s pretty normal. Unfortunately, the law of legal separation is not that black and white. That’s where legal counsel must help you when determining how much alimony should be paid, how assets and liabilities are going to be divided, and any other remedies in the event that the parties do not reach a settlement agreement.
Spousal Support (Alimony) First and foremost, the Degree of physical and economic dependence of a party upon the other, the extent to which the financial resources of the party seeking alimony are adequate to meet his needs, and the time necessary to enable the party seeking alimony to acquire the appropriate education, training, and employment to enable that party to be self-supporting are all taken into account in the event that a court must rule on this issue. One additional thing to keep in mind with spousal support is that it can be temporary and/or rehabilitative support. In other words, in some cases, a court may rule that one party is to receive support for a limited amount of time until employment can be found. This is also called "rehabilitative support."
Division of Assets and Liabilities The division of assets and liabilities can become contentious during a divorce or legal separation. It is ideal that the parties are able to agree on how the assets will be divided, as this is the least costly way to handle the situation. That said, if an agreement is unable to be reached, the courts are able to divide the marital property. Remember, equitable division does not mean equal division, but the assets and liabilities will need to be divided in a fair manner.
Obligations If there are any creditors involved, obligations stemming from the legal separation will need to be covered as well. Financial considerations are extremely important during a separation or divorce, and the parties should review their options in advance of meetings with counsel.
Custody and Child Support When Separating
In Washington DC, custody and child support arrangements can be established while you and your spouse are legally separated, in the same way as if you were divorcing. Legal separation may not be a permanent substitute for divorce, but it can be a useful option if you and your spouse would like to explore it. If you and your spouse decide upon a legal separation as opposed to a divorce, your custody and child support arrangements will likely be negotiated through the same process as a divorce. In most cases, this means that the judge will approve your custody arrangement as long as the judge feels in the best interest of the child. In most situations involving minor children, the judge will prefer joint custody arrangements , and judges will almost always prefer physical custody to be maintained with the parent from whom the child is moving. Paternity is sometimes disputed in DC, but usually the parent with whom the child lives is assumed to be the legal parent. Like child support, legal separation can also have a significant impact on your taxes. Arrangements made through legal agreements are typically observed during the separation and after a divorce is finalized. Since there is no divorce involved, alimony or spousal support should still be determined. Because the legal separation agreement is considered a contract, spouses should put additional options into writing as necessary to prevent future disagreements.
Modifying or Terminating Separation
A legal separation agreement can be modified or ended under a variety of circumstances. If both spouses agree to the changes, they may draft an affidavit of consent specifying what provisions of their separation agreement they wish to alter. If one spouse refuses to comply with the other’s proposed changes to the terms of the agreement, the case will proceed to court. Using the filing divorce action in Washington rather than a separation action, a judge has jurisdiction to enter orders that modification of terms of the separation agreement is necessary.
In certain situations – including where marital property was not disclosed at the time of entry of the separation agreement (generally through fraud or deception) or where an agreement provision is against public policy (such as an agreement that defers child support obligations to some distant future date) – a judge also has the discretion to change the parties’ separation agreement terms without consent of either party. In almost all other situations, however, a judge will require the consent of both parties to approve a modification of a separation agreement, whether the modification would benefit one or both parties.
A marital separation agreement can also serve as the basis for a divorce decree. When a separation agreement meets the requirements for a legal separation legislatively and additionally contains all of the terms and conditions in a form acceptable to the court as a "Marital Settlement Agreement," the separation agreement may itself be used as the basis for a "conversion divorce" proceeding.
Advantages of Legal Separation
People pursue legal separation for many reasons. While most couples who separate intend to move toward divorce at some point, some believe that remaining separated rather than divorcing immediately is better for them. In some cases, however, a judge may require separation before granting a divorce. Here are four reasons why legal separation may be the right option for you:
- You still want to be married and hope to reconcile.
- You want to continue to enjoy certain marital benefits, such as health insurance, Social Security and estate considerations.
- You believe separation will make divorce in the future simpler, particularly when it comes to child custody, property distribution and financial agreements.
- You need time to determine whether separation is right for you. Separation allows you to live apart and see how things go.
If any of these scenarios apply to you, then legal separation may be a viable option.
Legal Aid for Separation
While some couples do not view the importance of consulting with a lawyer in the process of drafting a legal separation agreement, it remains important to have a skilled professional by your side for the entire process. Consulting with a legal professional can help the parties ensure a fair agreement can be created and implemented . A lawyer will understand all laws applicable to the separation, and their experience can help parties avoid unnecessary misunderstandings and potential conflicts that could result in litigation. Seeking independent counsel should also be considered to ensure that a lawyer looks out and ensures only your best interests are protected.