Le Knapp: How To Legally Get Separated

Legal Separation is a major change in the status of your marriage. To get a legal separation you must file a petition in your Superior or Family Division Court. It is a distinct legal product rather than being a first step to getting a divorce. In fact, legal separation takes as long as a divorce (average time, 8-10 months), and costs just as much. In many ways, a legal separation is the same as a divorce. Both include final custody, visitation, child support, and if appropriate, alimony orders. All the family assets and debts are permanently divided. (In both types of cases, it is possible to get temporary orders about support and custody early in the case, if you need them.) The major difference is that if you have a legal separation, you are still married. The wife may not resume her former name. Since it costs just as much, takes as long, and requires the same major decisions, why would anyone want a legal separation? Some couples choose legal separation because of religious beliefs or moral values against divorce. In a few cases, health insurance coverage is the reason for a legal separation. Even after divorce, employer supplied health insurance may continue for a spouse.

However, the coverage may be for a limited period (two or three years) and may require payment of a substantial monthly premium. In some, but not all, employer’s health insurance plans, the situation is better if you get a legal separation. In these plans, coverage and costs change if you divorce, but not if you get a legal separation. If health insurance is an important issue in your family, get information from the employer’s benefit or human resources department. If you are considering divorce or legal separation, or think that your spouse is, it is important to see a lawyer and get legal advice. Legal advice includes how New Hampshire law applies to your family situation and your legal options. The lawyer can help you decide whether a legal separation or a divorce would be the better choice for you. Some lawyers offer a free or reduced fee initial consultation. If the lawyer whose advice you want charges, it will be a good investment for you to pay for 30 minutes or an hour of time before you take steps that cannot be undone. Separation, legal separation, and divorce have long-lasting legal results. See a lawyer before you act. Anything you agree to in a legal separation agreement can set precedence.

In other words, if you agree to your wife living in the marital home when you file for a legal separation and you continue to make the mortgage payments a judge may order you to continue doing so after a divorce. Do not agree to anything in a legal separation agreement that you would not agree to if you were negotiating a divorce settlement.

How to File for a Legal Separation

• First, you must meet your state’s residency requirements. Residency requirements are the same for legal separation and divorce. To find out your state’s residency requirements check your state’s divorce laws.

• If residency requirements are met you will then file a legal separation petition with the court if legal separation is recognized in your state. You may do this by contacting an attorney, using online resources or contacting your court clerk and filing prose.

• Along with your petition for a legal separation, you will file your legal separation agreement. Make sure the agreement covers all issues such as child custody, child support, visitation, spousal support, what is to happen to marital assets, who lives where, who pays what debts, any rules and guidelines pertaining to dating and having other people around any minor children and a time period for which the separation will end.

• If you and your spouse are not filing for the separation jointly you will need to have your spouse served once you have filed your petition for legal separation. As with a divorce, your spouse will have a certain period of time in which to respond to your petition for a legal separation.

• If your spouse does not agree to the provision set forth in the petition he/she has a right to file a counter-petition. If this is done and you can’t come to an agreement via mediation you will have to go before a judge to settle the issues you were unable to agree upon. In some cases, a legal separation can be as complicated as obtaining a divorce.

• If your spouse agrees to the provisions in the petition all you will need is for both spouses to sign and notarize the agreement so the court clerk can enter it into the court records for approval by a judge. It’s important you understand that once the agreement is filed with the court that it is a legally binding contract that you are both expected to follow.

• Once a judge has reviewed and signed your legal separation agreement it will be filed and on record with the court clerk. Once it is on record with the court you will want to be sure to keep a copy for your own records. And to follow the guidelines set out in the separation agreement.

You only have to want to live “separate and apart” from your partner to legally separate from them. This means that you have decided that you want to end your marriage or common-law relationship, and started to behave in a way that shows you want to end the relationship. You don’t have to go through a formal process or get a document to legally separate. After you separate, most people need to make important decisions on their family law issues. If you and your partner agree on your issues, you should put what you’ve agreed on in a written separation agreement. You do not need to file court papers to separate. The law does not require you to live with your spouse. However, separating from your spouse may affect your legal rights. The best way is to talk to a lawyer before separating.

If you do separate, you will need to work out arrangements for the care of the children, support, and payment of bills. A mediator or lawyer can help you and your spouse reach an agreement. A lawyer can advise you on your legal options, if an informal agreement is not possible. If you are not ready to file for a legal separation or divorce, but need the court’s help in getting child support or alimony (support for spouse) there is a special type of court papers that can be filed. You may also seek court orders about custody and visitation without filing for a legal separation or divorce.

Couples decide to legally separate instead of divorce for many reasons. Some of the most common reasons are:

• They are unsure if they want to get divorced

• They cannot afford to get divorced

• Financial benefit, such as continued health insurance

It is important to note that legal separation is not just moving out of the home you share with your spouse. If you want to legally separate, you need a separation agreement. In general, a separation agreement covers:

• Basic information such as the date you were married, the date you separated (or will separate)

• Who the children will live with (if you have children)

• Who will pay which bills

• How property, like your home and cars, will be divided up and cared for

It is important to think carefully about the terms of your separation agreement. If you decide later to get divorced, the terms of your separation agreement can become the terms of your divorce.

What do I do after the separation agreement is written?

• Get it signed and notarized. You and your spouse can sign it at different times and in front of different notaries.

• File your signed and notarized separation agreement with the County Clerk.

• Once your separation agreement has been filed, the process is complete.

There are pros and cons to legal separation, and it may not be right for every couple. Here are some of the most important things to consider:

The pros of legal separation

• Legal separation provides space and time to figure out if divorce is really what you want.

• It can be a good time for marriage counseling.

• You can still get your spouse’s health insurance.

• Years spent legally separated count as years married, so you will be able to receive your spouse’s social security retirement benefits. (You must have been married for at least 10 years to receive your spouse’s social security benefits.)

• Legal separation may not violate your religious beliefs.

• A separation agreement can be helpful if you get divorced because the court may allow you to use your agreement as a basis for divorce.

The cons of legal separation

• Legal separation does not end your marriage. You would still have financial, legal and logistical ties to your spouse.

• A separation agreement is meaningless unless both spouses sign it.

• Spouses who do not get along or do not communicate well may have a hard time creating a separation agreement.

• You cannot marry someone else when you are legally separated.

• If abuse has occurred in your marriage, legal separation is not a good option.

• You must wait a year to use a separation agreement as a basis for divorce.

If you want the terms of your divorce to be the same as the terms in your separation agreement, file for a conversion divorce. A conversion divorce is a divorce based on an existing separation agreement.

In a conversion divorce, you ask the judge to include all the terms of the separation agreement in your divorce. The judge will review all of the terms of your agreement and decide whether to include all the terms of the agreement in your divorce. Also remember: You and your spouse must have lived apart for at least one year, and followed the terms of your separation agreement, before filing a conversion divorce. If you have not already filed your separation agreement with the county clerk, you must file the separation agreement at the same time you file your divorce papers.

There are many reasons why you may choose to get legally separated rather than divorced, for example:

• One or both of you may hope to reconcile in the near future;

• One of your may rely on the other for health insurance;

• One spouse might like to stay married in order to qualify for Social Security or military benefits on the other’s account; or

• For religious reasons.

Regardless of why you want a legal separation, most states will require you to do more than simply live apart. To be legally separated in most states, you must go through a process very similar to a divorce and which involves the same issues, namely:

• Child custody and visitation

• Alimony and child support

• The division of marital property and debts

What is the benefit of getting a legal separation?

Maybe you have hoped you’ll get back together and you don’t want to end things just yet. Maybe you need to stay on your spouse’s insurance, and if you get divorced, the insurance company will kick you off the policy. In those types of situations, it may make sense to stay married but live apart separately, which is what a Utah legal separation allows you to do.

Who files for legal separation?

Usually, those who file for legal separation are:

• people whose culture doesn’t allow divorce,

• people whose religion doesn’t allow divorce,

• people who want to stay on their spouse’s insurance.

When people compare Utah legal separation with Utah divorce, and they realize the restriction on legal separation, they almost always choose to file for divorce.

Legal Separation Lawyer Free Consultation

When you need to get a legal separation in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you get legally separated. File for Divorce. Child Custody. Child Support. Alimony. Debt Division. Asset Division. Real Estate. And Much More. We want to help you.