Physical and Legal Separation
Separation is a general term that encompasses both physical and legal separation. Physical separation occurs when a husband and wife simply stop living together. While this action has no direct legal effect on the marriage, deciding to separate can seriously affect your legal rights, especially in the event of a subsequent divorce. A physical separation may have unexpected financial ramifications and may even impact custody and parenting time in a subsequent divorce or legal separation. It is a good idea to consult with an attorney if you are interested in physically separating from your spouse.
Legal separation is an entirely different matter. In Oregon, a legal separation is governed by many of the same laws as a divorce. While a legal separation agreement does not fully dissolve the marriage, the process of becoming legally separated typically involves the same steps taken during the divorce process.
As in a divorce, a petition requesting legal separation must be filed with the court. Next, formal discovery may take place and pleadings for temporary relief such as child support and temporary custody may be filed. If the parties agree to the terms of the legal separation (including, for example, custody, parenting time, financial support, and allocation of assets and debts), they may file a judgment of legal separation. If the parties do not agree to the terms of the legal separation, they may mediate the disagreement or submit the disagreement to the court at trial, in the same manner as a contested divorce. At this point the judgment of legal separation is legally binding upon the parties the same as the terms of a judgment of dissolution would be.
In Washington, a couple’s “date of separation” is significant. This is the point at which it is presumed that assets and liabilities incurred by each spouse belong to them separately. Date of Separation in Washington is typically the date on which the Petition for Dissolution is filed, or sometimes earlier, such as when spouse’s move into separate residence and there is evidence to suggest there was no intention to attempt to reconcile the marriage.
A legal separation can be either a “Limited Separation,” or an “Unlimited Separation.” While a limited separation is effective for a predetermined period of time, such as six months or one year, an unlimited separation is effective indefinitely.
This is a very brief overview of legal separation. There are significant pros and cons to proceeding with a legal separation versus a divorce. Your attorney can help guide you through those pros and cons before you decide which route is best for you.