Legal Separation: The Road Less Taken

Legal Separation: The Road Less Taken

 

By:  Austin E. Williamson and Heather Rooney McBride

 

Divorce is not for everyone, and there are situations in which the parties agree that a separation is needed, but a divorce is not the end goal.  In certain situations, a legal separation may be the best choice.

 

First, it is important to understand that while you may be living physically separate and apart from your spouse, that does not mean that you are yet “legally separated,” or that you enjoy any of the protections that a true legal separation would afford you.  A legal separation, like a divorce, is an actual cause of action that must be filed and proved before a Court with jurisdiction.

A divorce and a legal separation are similar in many ways, except that at the conclusion of a legal separation, the parties remain married to each other; in a divorce, the marriage between the parties is terminated.  As for the initiating documents of both proceedings, in a divorce, a party will allege that the marriage is irreconcilable and is otherwise irretrievably broken.  In a legal separation, a party will plead that the marriage is not irreconcilable; other than this difference, the burdens and proof required for a Court to grant the respective relief are the same.  In order for the Court to grant a legal separation, a party must present a case almost identical to that of an action for divorce. Likewise, orders regarding child custody, child support, maintenance and division of property and debts would also be entered in a legal separation, just like they are in a divorce proceeding.

There are reasons why parties would consider a legal separation rather than a divorce. The foremost circumstance being when the client truly believes that the marriage can be saved but needs certain protections during the parties’ time apart or while the parties work on their relationship; a legal separation may, among other things, prevent financial and property loss, protect a spouse against abuse, and provide guidelines for the custody and care of minor children – all without dissolving the marriage.  Additional reasons for considering a legal separation include a client’s opposition to divorce on moral or religious grounds, to avoid the “doctrine of necessities” which in Missouri provides that you are liable for your spouse’s debts for certain goods or services if you were living together at the time the debt was incurred, and/or to continue healthcare insurance coverage through a party’s insurance that would not be available if the parties are divorced.

While the orders in a legal separation are binding, the legal separation itself may not last forever.  If the parties choose to reconcile, a Judgment of Legal Separation can be set aside by the court.  Conversely, after ninety (90) days have passed from the date the Judgment of Legal Separation is filed by the Court, either party may file a motion with the court to convert the Judgment of Legal Separation into a Judgment of Dissolution of Marriage in order to terminate the marriage.

A legal separation is generally no quicker or easier than a dissolution; however, a legal separation has its appropriate time and place.  If you would like to speak with an attorney about a legal separation, divorce, or your options regarding any domestic matter, please contact Rooney McBride & Smith, LLC at 417-708-9681 to schedule a free consultation.