Elmer McDuffy: Is A Legal Separation Necessary?

If you’ve made the difficult decision to move out of the home you share with your spouse, you might consider getting some form of a legal separation agreement in order to protect yourself during this transitional time. This is especially important if you and your spouse own a home together, have children, use joint banks accounts, or have any other financial interests in both of your names. While some states recognize legal separation, others don’t. If you live in a state that doesn’t, you’ll need to file for a divorce in order to have legal protections. Although this might sound intimidating, it’s not as daunting as it seems.

The first step is to agree to the terms laid out in a written agreement from the court. Then, a judge will sign the agreement, making it legally binding. This serves as a “temporary court order,” and outlines the responsibilities expected of you and your spouse while you’re separated before the divorce is final. If you’re not ready to go through with divorce, you can request that your attorney put the divorce on hold. In the meantime, thanks to the temporary court order, you’ll still have the same legal protections that couples who live in states that recognize legal separation do.

Reasons for Choosing Legal Separation

• If there’s a lot of conflict in your relationship and you are your partner aren’t able to communicate in a healthy way, a legal separation agreement might be a good idea. It can help define what is expected of you both during a period of separation and you’ll no longer need to argue about who’s responsible for what.

• If you don’t trust your spouse to live up to verbal agreements the two of you make together when separating, a legal agreement signed and witnessed by either a judge or third party can help. This way, you have a document to present in court if your spouse doesn’t live up to any part of your agreement. Because a verbal agreement isn’t legally binding, you won’t be protected if either of you strays from what you may have agreed to without a written agreement.

• If you have children and want child support, a legal separation agreement may be necessary. You can’t enforce the payment of child support without a legal court order, but, if your state recognizes legal separation, child support can be calculated according to your state’s child support guidelines and can become part of your legal separation agreement.

• If you have children and need to set up a visitation schedule, you’ll want a legal agreement in place. Not only can a legal separation agreement define a visitation schedule, but it can also define who has access to your children when they’re in your spouse’s custody, where your children reside when they’re not with you, and whether or not your children can travel without your consent. Essentially, it’s your first line of defense when it comes to protecting your parental rights.

• If you’ll need financial spousal support, a separation agreement is probably necessary. This can define how much support will be paid and on what date. Once again, this can’t be enforced without a legal court order.

• If you need to come to an agreement on who pays what bills, a legal agreement can help. You’ll want this type of document to ensure you don’t fall behind on mortgage payments, car payments, and other shared costs. That way, who is in charge of paying what will be legally and clearly defined.

• If you share health insurance, a legal separation agreement can help define who will maintain coverage, who will be covered, and who will pay the out-of-pocket expenses that come up if either of you or your children get sick or injured. Without the agreement, these costs could slip through the cracks.

• If you have kids and you or your spouse plan on dating, you’ll want a legal agreement in place regarding what you’re comfortable exposing your kids to. That means creating terms about whether or not new partners can come over to the house while your kids might be around.

• Uncertainty: If a couple is not certain they want to end their marriage, a legal separation may be a good starting point. In the event that the couple decides to reconcile in the near or distant future, a legal separation can be reversed, whereas the same is not true regarding a divorce. With a separation, there is no need to “remarry” because the marriage was never dissolved.

• Personal Preference or Religion: : For some couples, a legal separation is most appropriate when neither of the spouses plan to remarry in the near future, or they simply do not wish to fully dissolve the marriage. Sometimes couples choose a separation because they wish to live separately, but want to maintain the covenant vows made on their wedding day.

• Necessary Division: For couples that reside in states with lengthy separation periods prior to a divorce, a legal separation is a good option. During the separation period, the couple can resolve matters related to the marriage such as the division of property. This will prevent the couple’s assets and debts from being further intertwined during the separation period.

Reasons for Choosing Divorce

• Certain Breakdown: If a couple is certain their relationship is over and they have no plans to reconcile they may consider a divorce their best option.

• Dating and Remarriage: When a couple is legally separated they are not free to remarry. If either party is planning to date or remarry soon after separating, a divorce is may be their best option. In addition, some states consider relationships, dating or intercourse with someone other than your spouse during the legal separation an affair or adultery. State laws regarding adultery vary and repercussions punishment can be severe or costly. For this reason, it may be best to choose a divorce if either party intends to date.

Prior to making the decision to legally separate or divorce, it is vital for parties to understand the difference between the two. In both a legal separation and a divorce, the court will rule on the same issues:

• Property Distribution

• Debt Distribution

• Spousal Maintenance/Alimony (if applicable)

• Parenting Plan/Custody (if applicable)

• Child Support (if applicable)

The court will instruct the parties as to their legal interests and obligations regarding these issues. In most cases, property and debts acquired after separation will be the responsibility of the incurring party. The court will also intervene in the event one party is not abiding by their legal obligations.

In legal separations, although the court may rule on the issues above, the marriage will not be legally dissolved or terminated. Parties cannot legally remarry. There can be any number of reasons parties may choose a legal separation over a divorce. In many cases, a legal separation is necessary to protect certain rights or interests of one or both parties such as:

• Retention of Medical Benefits: Spouses must stay legally married for one spouse to remain eligible for health insurance available to the other spouse.

• Eligibility to Receive Military Benefits: Spouses must stay legally married for a certain period of time for one spouse to remain eligible for benefits under the Uniformed Services Former Spouse Protection Act (USFSA), including military retirement.

• Eligibility to Receive Federal Government Benefits: Spouses must stay legally married for 10 years to retain eligibility for certain Social Security benefits.

• Maintain Immigration Status: Spouses must stay legally married for one spouse to maintain immigration status.

• Preservation of Tax Benefits: Spouses can stay legally married to remain eligible for better tax benefits.

• Preservation of Various Other Rights: Spouses can stay legally married to preserve various other rights, such as hospital visitation.

In addition to remaining eligible for certain benefits, parties may seek a legal separation instead of a divorce for other reasons, such as:

• To avoid conflict with the religious convictions of one or both spouses

• To avoid the stigma which may be attached to divorce, including feelings of shame, disgrace, or failure

• To allow time for the spouses to determine whether divorce is what they really want

In the event one or both spouses decide a legal separation is the preferred course of action or is necessary for them, the question then becomes: “What do we do next?” While certain states and jurisdictions allow for the drafting of a legal separation agreement, many states require a decree, or similar court pleading signed by a judicial official and filed with the local court. In many cases a legal separation can be converted to a divorce in the future. In determining what may be the best course of action, it is advisable to speak with a qualified attorney. A divorce lawyer can discuss the potential advantages and disadvantages of both a legal separation and a divorce, advise parties as their best options, and explain the processes and proceedings necessary to pursue the chosen course of action. A Separation Agreement is your legally binding contract with your spouse that will detail how the issues surrounding your separation are settled, such as custody, access, support and property.

This Agreement will be the contract you will likely refer to and follow for many years, especially if you have young children. Therefore, in negotiating and drafting your Separation Agreement it is important that it is very detailed and specific to your situation. Often, something that may not be an issue now may become an issue in the future and your Separation Agreement may not have dealt with that specific issue. In the case of these situations, it is important to have clauses in your Separation Agreement that assist you and you’re separated or divorced spouse in dealing with and settling these situations as they arise, without the need of having to contact a lawyer.

Often included in Separation Agreements are dispute resolution clauses that will detail how you and your separated or divorced spouse will deal with, discuss and settle these issues, such as going to a mediator or parenting coordinator. This will save you future legal fees and the time of having to go through a lawyer, each time an issue arises. Therefore, it is important to discuss with your lawyer issues that you believe may arise in the future and how to deal with the issues effectively.

Can separation be good for marriage?” is a question that has raised a lot of eyebrows. Many people wonder if there is anyway separation can save a failing relationship. The good news is, that yes, “Separation can really help a couple stay together”. We often think it is bad when a couple lives apart. We usually see separation as something used mostly by couples that have reached the point whereby break up is inevitable. We see separation as a tactic used after all inventions and tricks have been used to get the marriage back on track. Most of us believe that when we feel our partner is slipping away from us, we should merge and bond more so as to get close to him or her as much as we can, and do more than enough to make the marriage work. The thought of separating or creating a distance at a time puts a great fear of losing the relationship in the mind of couples but it can be very effective in bringing a couple back together.

Here is why separation can be good for a marriage: Too much time together paves way for arguments: Separation is good for marriage when you and your spouse find out that spending too much time with each other is the reason for your disagreements, arguments and conflicts. Healthy arguments are needed to make a relationship or marriage work. But, when the arguments get too much and happen constantly, it can result into abuses and insults. Arguments and conflicts then are no longer healthy and active; rather it is unhealthy and passive.

Legal Separation Lawyer Free Consultation

When you need help getting a legal separation or a divorce in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.