Cincinnati Family Law & Divorce Blog: Is Legal Separation Right for Me?

There are many reasons why a client might consider a legal separation. Here, we will explain exactly what a legal separation is, and a few of the common reasons people seek to enter into a legal separation.

First, it should be noted that a legal separation is not the same as a physical or “trial” separation. Many couples physically separate prior to terminating their marriage. These physical separations may be very informal, with one spouse moving out and the parties making informal agreements as to how they will divide time with their children and manage the monthly expenses. A physical separation could also be accomplished with the assistance of attorneys, who would help parties to negotiate these terms. This situation is different than a legal separation, which is a specific type of legal proceeding.

In a legal separation, the parties go through essentially all of the same steps as they would in a divorce or dissolution. They typically make final determinations of the division of all debts and assets, they must allocate custody rights for their children, and will determine the amount of spousal and child support that will be exchanged. The parties can either make agreements on these issues or the decisions can be made by a court if the parties are unable to agree. At the conclusion of the process, a “Decree of Legal Separation” is entered by the Court, and the parties are considered legally separated. Their marriage has not been terminated, but many or all of the issues of their marriage have been finally decided.

The legal separation process can be just as lengthy and/or expensive as a divorce or dissolution. If the parties later decide to fully terminate their marriage, they must institute a new action for divorce or dissolution and ask the court to incorporate the terms of their legal separation decree into a new decree of dissolution or divorce. For this reason, we often work with clients to make sure a legal separation is the right fit before moving into that process. If a termination of the marriage is the ultimate goal, it may make sense to move forward with a divorce or dissolution at the beginning of the process rather than taking the extra step of a legal separation.

When would a legal separation be the right choice? Often legal separations are sought by individuals who have not resided in their state or county long enough to meet the jurisdictional requirements to file for divorce. In these instances, a legal separation action can be converted to a divorce once the party has met the residency requirement.

Another example is when a party objects to divorce for reasons of culture or religion. These individuals may need the legal structure and security of an allocation of debts, assets, custody and support, but do not wish to legally terminate their marriage.

In the past, parties have sought legal separations in order to remain on the same health insurance policy, however many health insurance companies will no longer allow legally separated individuals to remain insured on the same policy. Make sure to check with your provider before choosing a legal separation for this reason.