In Washington State the process to legally separate, or divorce are similar in some respects, but distinctly different. To better understand the process and to make the best decision for your unique situation, let’s compare and contrast the two.
In both legal separation and divorce, the parties will need to characterize property as community property or separate property, and divide all assets and debts (i.e., bank accounts, personal property, real property, retirement, investment, etc.). This can either be done by agreement of the parties, or by a judge. It is possible spousal maintenance may be requested–and if certain criteria are met, the court may order maintenance for a specified period of time depending on the length of the marriage and several other factors. If there are children involved, the parties will need to create a parenting plan and establish child support.
Whether legal separation or divorce, there are a variety of forms the parties will be required to file. After the date of legal separation, the parties would be considered living separate and apart and debts and assets going forward would likely become separate property.
One big difference between legal separation and divorce, is that under a legal separation, the parties are not free to re-marry until the divorce is finalized. It is important to keep in mind, if a legal separation is filed it cannot be converted to a divorce for at least six months.
Why would someone want to file for a legal separation instead of divorce:
If one party needs to remain on the other party’s insurance policy, they can do so by filing a legal separation. When a divorce is finalized, there is no option for one spouse to remain on the other spouse’s insurance policy. By law, upon divorce, insurance coverage ends. Not so, in a legal separation.
A divorce has a 90-day waiting period but can realistically take up to a year to finalize (if contested). Aside from the six-month waiting period to convert a separation to a divorce, a separation can continue status quo for years.
Religious reasons.
The couple feels they need a bit more time to explore if their marriage is truly over.
Other deciding factors may include social security, or employee benefits.
Changed Your Mind?
What if you file for a legal separation or divorce and decide to get back together? The relationship police will not come looking for you. In fact, you and your spouse are the drivers of your case. In most counties, divorce and legal separation actions will sit for about a year. If no action has been taken on the case, the clerk will dismiss it with no notice either party.
Either party also has the option to formally dismiss the case, which would put you back to the position you were before the action was filed. On the flip side, if a divorce is filed, and one party wants to dismiss and the other party wants to proceed, the action will proceed with the filing a motion for conversion. The court will not force someone to stay in a marriage they want out of. The same is true of a legal separation: after six months has passed, one party can file a motion to convert to a divorce without the consent of the other.
It is best practice in a separation to file a Motion to Vacate Decree of Legal Separation. That document, when signed by a judge, will legally end the separation, as if it never happened. This could be important if you and/or your spouse decide to proceed with a divorce at some later time.
There is no right or wrong choice—it depends on the needs of the couple. Whichever you choose, I am here to help you through the legal steps and support you through the process. Please contact me at: [email protected].
Disclaimer: The information presented here is for general informational purposes and does not constitute legal advice.