What is a Legal Separation?
Legal separation in Washington is a state order that allows a couple to live apart but remains legally-married. WA law defines legal separation as: "a procedure for the adjustment of property and debt obligations of the parties pending the legal dissolution of their marriage through divorce." In short, a legal separation is like a divorce but without the finality of ending the marriage.
A legal separation does not end your marriage. It does not legally-mend a broken marriage either. Couples seek a legal separation if they need time apart to evaluate their marriage, to settle issues of money or property division, or to work out individual custody arrangements with their children. In many cases, separation can lead to a reconciliation.
Legal separation is a legal way to live separately while remaining married. Unlike many states, Washington does not require a minimum length of time to be separated before filing for divorce; however, living apart does change the court procedures for divorce proceedings.
Many people think that a legal separation is just the first step to divorce. That’s not necessarily true. A legal separation doesn’t automatically go from one legal situation to another. One spouse or the other would have to file a motion with the court to dissolve the legal separation.
One reason why some people file for legal separation (as opposed to begin the divorce process) is because of religious beliefs. Some strict religious traditions do not allow believers to divorce. These couples often see a separation as a "cooling off" period and save their dissolved marriage for civil courts .
Sometimes, though, an action of separation is used by one party to avoid child support, alimony or property division. This is a contested, and the separation will be dissolved and the full divorce process will proceed.
Legal separation is simpler than divorce, but it’s not easy. Both spouses will need enough space within which to conduct their own finances, make independent parenting decisions, and behave like a single person instead of part of a couple.
Separation begins with a physical move in a separate direction. This allows both parties to establish independent lives while proving that they’re ready to begin a divorce action.
Most attorneys advise against making any real estate or other financial transactions until after the separation is filed, unless both parties are present to sign off on the changes. Though it’s difficult—and sometimes even painful—to discuss property division, joint accounts and custody—these issues remain unresolved until a motion to dissolve the separation is filed, at which point they will need to be rediscussed.
A legal separation ends in one of three ways: reconciliation, divorce, or an order of dismissal from the courtroom. Both parties must consent to reconcile or dismiss their separation. Once the judge approves the motion, both spouses are returned to their pre-separation status.
All legal agreements will continue to remain in effect, and until the divorce is complete, the spouses are still expected to adhere to the terms of their separation.
Legal Separation Requirements
When a married couple is having marital issues and needs to take a "time-out," Legal Separation is an option. Legal Separation is available to all o the following: (a) the husband or wife must have resided in this state for three months immediately preceding the commencement of the proceeding, and (b) that there exist proper and sufficient cause in the opinion of the court for adjusting their property and compelling an accounting and settlement between them based upon their respective contributions. RCW 26.09.030. In other words, as long as either spouse has been a resident of Washington State for at least three months before the filing of the petition for legal separation, the Court will have jurisdiction to consider the action.
The requirements for Legal Separation in Washington State are almost identical to the requirements for dissolution. Because you must have either resided within the state for at least three months prior to the commencement of the action for legal separation, it is not recommended to attempt to file for legal separation in Washington State if you are not a resident. Although this may seem obvious, I recommend that you check Washington states residency requirements for dissolution, which are almost exactly the same as Legal Separation, before considering a Legal Separation in Washington State.
Legal Separation Process
In Washington State, the process for filing for a legal separation is similar to that of filing for a divorce, with a few distinct differences in cause and effect. The filing requires the same forms: the Petition for Dissolution (or Separation), Summons, Confidential Information Sheet and Family Law Notice Form. In addition, there are some additional forms that must be completed: the Certificate and Note of Issue, Case Schedule, Sealed Financial Source Documents Cover Sheet and Mediation Agreement Form. But be aware that it is likely that the mediator will still require copies of at least the marital history and income worksheets.
In addition, the Parenting Plan is slightly different from the Parenting Plan for a divorce as well. For a legal separation, the Parenting Plan is typically used to draw a line between pre-separation parenting and post-separation parenting. The equally important Parenting Plan does not have to be signed by both parties, as it would in a divorce where a Parenting Plan must be agreed to by both parties before it is signed and filed with the Court.
Working with the courts to submit all of these forms is the first step in the process. The next step is to wait for the Response from the opposing party to be received at the clerk’s office. If a Response is not filed within this 20 day period, the parties may enter an Agreed Parenting Plan into the court without appearing before a judge. That plan will need to be signed and filed by both parties. However, the parties in a legal separation may decide to go ahead with their hearing without the need for an Agreed Parenting Plan. For example, when one spouse has left to another country, the two parties may go forward with a default hearing. This happens when the Respondent fails to file a response by the deadline. Submitting the required paperwork to the court clerk’s office is the final step in the process of filing for a legal separation.
Your Rights and Responsibilities While Separated
The award of a legal separation does not automatically lead to the legal dissolution of the marriage. If the party seeking a divorce elects to proceed to trial, a dissolution of the marriage can be granted at or after the final divorce hearing. Most legal separations provide an automatic window of opportunity in which either party can terminate the separation and pursue a divorce, thereby avoiding the cost and strife of continuing with an ongoing separation.
A legal separation is not a substitute for issue determination. All issues that exist on the date of separation remain issues that must be decided when or if a divorce is pursued. Pre-separation issues will be resolved based on the date of the filing of the legal separation. The court will also attempt to allocate any debt incurred during the legal separation, but may provide some limitation on claims for debt incurred based on a lack of ability to comply with income and budget disclosures.
Legal separation will permanently resolve most if not all child custody issues that exist on the date of separation. The court will not re-adjudicate custody and visitation issues that already exist under a legal separation order unless there is material change of circumstances after the date of separation that justifies the further litigation. However, new issues can be litigated like establishing a custody and child support order regarding a child born after the date of a legal separation.
Advantages of Legal Separation over Divorce
Benefits of Legal Separation Over Divorce in Washington State
For many, the terms divorce and legal separation seem to be interchangeable, but the reality is that there are substantial differences between the two in Washington State. Choosing to be legally separated from your spouse may be the best option for your and your family for a lot of different reasons. Here’s a closer look at the potential benefits of legal separation over divorce:
Financial planning. Financial issues may be easier to address by way of a legal separation, rather than a divorce. It’s often easier to negotiate property division and alimony when both parties aren’t having to pay to have the divorce action filed in the first place. A lawyer will be able to help with this process so you can achieve the ultimate best outcome.
Legal considerations. By pursuing a legal separation, certain legal issues can be addressed without having to go through a divorce. For example, the court can give you a temporary order of child support , custody or alimony while the separation is continuing and help resolve aspects of the case before it proceeds to divorce, if that’s what you ultimately decide you want to do.
Space to breathe. Separation can provide the individual space needed to consider whether or not permanent divorce is really necessary. Investing in this temporary period of separation can help you figure out whether you’re willing to take the next step to file for divorce if you just need to spend some time apart.
Complicated circumstances. Separation can be the best option for people who have gone through complex asset divisions in the past with their spouses, have the potential to acquire further assets during the course of their legal proceedings, or have minor children involved whose needs could make a divorce complicated or challenging.
The laws regarding legal separation in Washington State may seem confusing, but it’s always a good idea first and foremost to speak with an experienced family law attorney to make sure this is the best choice for you.
Turning a Legal Separation into a Divorce
A decree of legal separation may be converted to a final divorce decree if at least 90 days have passed after the entry of the decree of legal separation, the separation has not been revoked or dismissed, and either party has filed a request to convert the decree of separation to a decree of divorce. Any time after the entry of the decree of legal separation, either party may file a request to convert the decree of legal separation to a decree of divorce. This brief filing begins the conversion process. If both parties want the case to be a divorce without the need for a trial, in most counties, they can jointly sign and file their request. Usually, there will be deadlines set by the specific county for the parties to submit their signed request and, in some counties, a separate order to convert. In other counties, the joint order is all that is necessary to convert the separation to a divorce.
Assuming all deadlines are met, after the request to convert is filed, usually a clerk’s order will be entered confirming the case has been converted to a divorce. When the case is ready, the order converting the case to a divorce will be filed with the court clerk. In most counties, the parties then need to re-submit all items that were prepared at the time of the separation (i.e., a proposed decree of divorce and any other necessary documents), adjusted for any changes in the law and circumstances of the parties, to complete the finalization process of the divorce.
Frequently Asked Questions on Legal Separation
What is a legal separation in Washington?
A legal separation in Washington happens when one spouse files for an Order of Separation under RCW 26.09. All debts and assets are either equitably divided between the parties, or remaining as they were. The parties cannot remarry.
What is the difference between a legal separation and divorce?
In a legal separation, the parties remain legally married. With a divorce, the marriage is dissolved after entry of the decree.
How does property get divided in a legal separation in Washington State?
Property is divided in the same manner as a divorce, where community property is equitably divided. Parties can agree to separate property, where they each keep what they brought into the marriage, or agree on how certain assets are awarded in the separation.
How is debt divided in a legal separation in Washington State?
Debt is divided in the same manner as property in a divorce. If the debt predates the marriage and the parties have not comeledted anything during the marriage, it is likely separated and awarded to the party who brought it into the marriage.
Can I be forced to get a divorce in my legal separation?
A party cannot be forced to enter a divorce. The parties may remain legally separated for as long as they wish. However , once the divorce term begins, which is a minimum of 90-days, the parties will receive a final decree.
Do I have to be separated for 6-months before getting a divorce?
Not necessarily. See the answer to question #5.
I don’t want a divorce, but my spouse does. Can I block a divorce after I filed for a legal separation?
Parties can agree to separate property in a legal separation, or contest a divorce. However, once an actual divorce petition is filed, the divorce must be finalized or allowed to lapse in accordance with RCW 26.09. For example, if the only issue is parenting and the parties agree to do a holiday schedule while they litigate, but do not want to dissolve the marriage, they may file a motion to withdraw the petition for a divorce.
I filed for a legal separation because I don’t want to get a divorce, but now my spouse wants a divorce. Can I reverse a legal separation and go back to being married?
Not without a signed agreement putting the marriage back together. The separation must be completed and filed with the court in order to be dissolved. Parties can agree to reconcile.
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