Should I File For A Legal Separation?

I have had a lot of questions from potential divorce  clients contemplating divorce about whether a legal separation is a good alternative.   I previously blogged about the differences between an annulment, legal separation, and divorce.  Usually when a client asks about legal separation as an option,  the goal is to not get divorced, but to send an attention getting “shot across the bow” of their spouse to get them focused on the marriage.  From my experience and observation, this almost always backfires, and these cases get converted to a divorce mid-stream.

ORS 107.025 (2) provides the following grounds for a legal separation:

  1. Irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage;
  2. The parties make and file with the court an agreement suspending for a period not less than one year their obligation to live together as spouses, and the court finds such agreement to be just and equitable; or
  3. Irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest.

There are some narrow circumstances when a legal separation makes sense. The above three factors cover temporary marital problems, religious reasons to not seek a divorce, preservation of medical insurance or financial benefits, or those just seeking temporary breathing room in a troubled marriage.  Also, there’s no waiting period on moving to Oregon to file a legal separation, so it can be a useful tool to access the court’s authority over custody,  parenting time, and support until the court obtains divorce jurisdiction.

This is an area of family law where self-help is a bad idea. Through drafting, a good lawyer can make the difference between achieving a predictable and final result vs. future litigation and financial uncertainty. Great care must be taken in drafting the judgment of legal separation to avoid the possibility of the court substantively changing the financial terms of the agreement.  If there are ambiguities, the court can address the ambiguities and reallocate property in later proceedings.  The stipulated judgment of legal separation must be unambiguous that the parties intend the terms to be binding on any future divorce proceeding.  You also need to address in the judgment  many possible life events at a time of great uncertainty.  Many things can happen to separated couples, such as temporary reconciliations, and these contingencies  should be addressed by your lawyer in the judgment.

 

 

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