In an informal way, people are "separated" when they are not living together. However, people are only "legally separated" when a final judgment has been signed by a judge which is a judgment of legal separation. This raises the question of when and why a person might prefer to have a legal separation rather than a divorce.
A. Three Types of 'Separation'
- Informal Separation. Separation can be informal, where the parties live apart and no Judgment of Legal Separation is entered by the court signed by a judge.
- Limited Separation. A legal separation where a judge signs a Judgment of Legal Separation can be for a limited period of time, and is known as a "Limited Judgment of Separation." This type of separation for a limited period of time is rarely used, and it has only limited value under any circumstance because it costs a lot of money to get a legal separation (unless the parties can accomplish this on their own), and it only lasts for a short time (leaving you back where you started when the duration of the separation stated in the judgment comes to an end).
- Unlimited Separation. The third type of separation is the unlimited legal separation. This is the most common type of formal legal separation and is the result of an agreement by the parties to a resolution of their marital issues for an unlimited period of time.
B. Nature Of The Procedure
Before anyone should consider a legal separation, they need to understand that the process of obtaining a legal separation in every meaningful way is identical to the process of obtaining a divorce. The paperwork filed with the court is virtually identical. The filing fee paid to the court is usually identical. The work put into the process both by the parties and their attorneys is identical. All of the same issues have to be resolved, custody, child support, spousal support, property division, debt division, etc. Everything is the same except that the final document, a judgment (the document which resolves all of the issues between the parties), leaves the parties married if the parties agree to a legal separation whereas the final document leaves the parties divorced if the parties do not agree to a legal separation.
C. Reasons To File For Legal Separation Rather Than For Dissolution of Marriage
So if everything is so similar between a divorce and a legal separation, why would anyone want to have the legal separation, and what are the advantages and disadvantages? There are four primary situations in which people decide to agree to a legal separation. I say "agree" because legal separation only happens when the parties agree. A court cannot order a legal separation over the objection of one of the parties. People in the state of Oregon have an absolute right to a divorce if they wish to have a divorce, and a divorce will be granted at the request of that party even over the objection of the other party who would prefer to have a legal separation. Although there are other situations in which the parties might agree to a legal separation, the following are the four primary situations:
- Health Insurance Reasons. Sometimes one of the parties is in poor health, sick, or injured, while the only medical insurance available to that party is through the other party's medical insurance plan. If a divorce takes place, the party in poor health might lose medical insurance and might not be able to get other coverage, or other coverage might be cost-prohibitive. The parties might agree to have a legal separation rather than a divorce because, sometimes, medical insurance companies will allow the spouse in poor health to remain on the medical coverage at no additional cost even though the parties have a legal separation. Historically, this is not always the case.
- Religious Reasons. People sometimes have religious or moral beliefs which compel them not to agree to a divorce. It is important to note that the person who holds this belief can initiate a legal separation proceeding which ultimately results in a divorce; the person who initiated the legal separation proceeding did not cause or apply for a divorce. The responding party in this scenario applied for the divorce. It is very common for a religious organization to find a party without fault who initiates a legal separation even if the proceeding ultimately ends in divorce because the person initiating the filing of the first court documents did not request or initiate a divorce. When a person initiates a legal separation proceeding rather than a divorce proceeding because of their religious belief, the responding party almost always responds by asking for a divorce.
- Financial Reasons. Sometimes people have a motivation to preserve their estate or their financial resources, but they do not necessarily want a divorce. Perhaps one of the parties intentionally or unintentionally is exposing the family to difficult negative financial stresses which caused one or both of the parties to want to have a legal document signed by a judge which protects and preserves the assets of each. They might want to stay married and live together, or they might want to live separately, but they simply do not want to be divorced for whatever reason. In this circumstance, if the parties are living together, they absolutely need to have a "living together agreement" signed by the parties. This is something which needs to be prepared by an expert in family law. Only an expert would know how to protect the parties from all of the seen and unforeseen problems which come from continuing to live together after a Judgment of Legal Separation has been entered.
- Jurisdiction and Protection of Children. Under certain circumstances, a parent would like to have the court quickly issue orders which protect children. Orders cannot be signed by a judge until a case is filed in the court. If a parent has moved to Oregon recently but has not lived here long enough to establish jurisdiction for the filing of a petition for dissolution of marriage, that person might want to file for a legal separation (for which a lengthy presence in Oregon in not required). The parent filing then may request immediate assistance from the court regarding children, support and other issues depending on the facts of the case and on the type of jurisdiction that applies in the case.
D. Advantages, Disadvantages and Concerns Relating to Judgments of Separation
When a Judgment of Dissolution of Marriage is signed, with rare exceptions, the rights and responsibilities of the parties have been determined once and for all, forever, except for certain specific categories of issues which continue to be modifiable in the future such as child support, spousal support, custody, and parenting time. Property and debt division, on the other hand, is not modifiable after the entry of a Judgment of Dissolution of Marriage, and so you need not worry about your spouse coming back months or years later to ask for more property. Also, another advantage (if you are the spouse with the greater income) to a Judgment of Dissolution of Marriage is that, if no spousal support has been awarded in the initial Judgment of Dissolution of Marriage, no spousal support can ever be awarded later (unless you remarry the same person).
Regarding judgments of legal separation, however, historically there has been uncertainty about the "finality" of these judgments. For decades in the 20th century, people who were governed by a Judgment of Legal Separation lived in fear that the other party would come back, re-open the case, and ask for more property or perhaps even an award of spousal support, benefits which were not awarded in the initial Judgment of Legal Separation. Ultimately, the Oregon Court of Appeals provided more certainty to Judgments of Legal Separation. Now, if the parties, in the language of the Judgment of Legal Separation, make it absolutely clear the parties intend the Judgment of Legal Separation to be a permanent and unwavering resolution of all of their issues, forever, the parties can have a very high degree of confidence the Judgment of Legal Separation will be almost as rock-solid and dependable as a Judgment of Dissolution of Marriage.
If a Judgment of Unlimited Separation is written properly so that the intent of the parties to make the resolution of all issues permanent is absolutely clear, in all likelihood, the trial court and appellate courts will enforce the Judgment of Legal Separation just as they would a Judgment of Dissolution of Marriage. However, not enough cases have gone to the court of appeals on this topic for there to be absolute certainty about this.
So the question of whether to pursue a legal separation as opposed to a divorce comes down to a balancing of the needs and goals of the parties. If the need to have a legal separation outweighs the small risk that a properly written legal separation judgment will be "cracked," then a legal separation may be the appropriate course of action. There simply must be an understanding there is no absolute guarantee that the court at a later date will not try to reshuffle the deck regarding property and debt division or support awards, for example.
If a case is finalized by a judgment of legal separation rather than a judgment of dissolution of marriage, the parties are still married after the judge signs the final document. Because you are still married, you are not eligible to remarry.
F. Converting a Legal Separation to a Divorce
Either party may request by "motion" to the court that the legal separation be converted to a dissolution if the request is made within two years of the initial legal separation and if the person seeking to convert the judgment is not seeking to change any of the terms of the original judgment. After the passage of two years from the date of the original legal separation, however, the procedure to convert the legal separation to a dissolution is accomplished by the filing of a petition for dissolution of marriage rather than by the filing of a motion.
Filing a petition is more expensive than filing a motion, and the procedural rules for petitions and motions are different. As long as neither party is trying to change the terms of the original judgment of legal separation, the process of converting the legal separation to a dissolution is straightforward. It is at this point, however, that one of the parties sometimes tries to change the terms of the original judgment of separation. If the original judgment was well-drafted, it will be extremely difficult for the terms to be changed. If, on the other hand, the legal separation was intended to be for a limited period of time, or if the original separation judgment was poorly drafted, the court has the authority to reshuffle the deck regarding the parties' assets and debts and regarding awards of spousal support (even if no spousal support was awarded in the initial judgment). Issues relating to custody, parenting time, and child support are always potentially modifiable if they meet certain requirements regardless of the type of the judgment of legal separation or the quality of the drafting of that judgment.