Choosing to file for divorce is a very difficult decision. Sometimes due to varying situations, the spouses want to explore alternative choices in lieu of filing for divorce. One of those alternatives is a legal separation.
What is a legal separation?
A legal separation, ordered through a Decree of Legal Separation, legally separates the parties but does not sever the marriage as a divorce or dissolution would. While a divorce and a legal separation are filed with the Court in much the same way, in order to obtain a legal separation, both spouses must agree to the filing. If either spouse files for a divorce, a legal separation will not be granted.
Legal Separation versus Divorce
Just as in a divorce, in a legal separation the parties must allege grounds for the legal separation. Both divorce and legal separation must be pled under the same grounds outlined in Ohio Revised Code section 3105.17 which include the incompatibility of the parties or the absence of one spouse for more than one year.
In the legal separation proceedings, all separate and marital assets and debts will be divided. If the parties have children, the court will also issue a decision regarding custody, parenting time, and child support. Any order or agreement made in the legal separation cannot be later modified unless there is an agreement by the parties. Even when there is an agreement, some decisions, such as the division of retirement proceeds are very difficult to undo. For this reason, it is imperative to have full disclosure of all financial assets and liabilities from each spouse prior to any agreement or court order.
Following a legal separation, if either party wishes to remarry, they will first have to legally sever their first marriage by obtaining a divorce. A subsequent divorce will incorporate the terms of the prior legal separation unless there is a written agreement to the contrary.
Why choose a legal separation?
The reasons that parties seek a legal separation in lieu of a divorce vary. In some scenarios, the parties wish to divorce but due to certain circumstances one spouse needs to remain covered by the health insurance of the other. Couples seeking a legal separation for this reason should carefully read their health insurance policy. Most policies now have specific language which terminates coverage for a spouse in the event of a legal separation.
In other scenarios, one spouse wishes to have a degree of legal protection from the poor financial management of the other. Since all assets and debts are divided in the Decree of Legal separation, a spouse cannot be held responsible for any debts incurred by the other following the legal separation.
Nonetheless, unless the parties have underlying beliefs that prohibit divorce or a very specific need, a legal separation typically only prolongs the process to terminate the marriage and generally leads to duplicative litigation.
If you need further advice on whether a legal separation is right for you and your spouse, please reach out to one of our attorneys who guide you toward the decision that is best for you.