Legal Separation in Washington State
Legal separation is the term given to the official arrangement when a husband and wife are living separate lives but remain married. Legal separation is, as the name suggests, a legal process that is a bridge between married life and divorce. Parties elect to be legally separated for numerous reasons. Some of the primary reasons include spouses’ religious convictions (a legal separation in Washington may be converted to a divorce decree if a spouse elects to end the marriage), the potential for forgiveness of the spouse’s debt under the laws of bankruptcy, to fulfill residence requirements for a divorce, for the sake of personal religious beliefs, or to facilitate settlement by preventing one party from incurring further financial expenses by removing him or her from the legal framework of the marriage.
Typically, legal separation does not guarantee that parties will divorce, it is, instead, a way to resolve any issues that may remain between the parties in a situation where divorce would not be an appropriate option. Many marriages may be salvaged through legal separation which allows the couple the time to discover if the marriage is salvageable. Legal separation may be viewed as a middle ground between the finality of divorce and full reconciliation , although, many couples who are separated wind up divorced.
In practical terms, legal separation involves detailing all decisions that the spouses would address in the process of divorce. Agreements reached in the separation period are referred to as a "Separation Agreement" and the couple remains legally married for all intents and purposes. If the couple later decides a divorce is in order, the "Separation Agreement" can be filed "as is" in a divorce decree. In this situation, the Separation Agreement terms become the basis for the divorce decree and the parties would be required to document any changes they wish to make in the divorce decree.
The legal separation in Washington State will not end until the couple reconciles or more commonly after 90 days of separation if they do not complete the process by determining the financial terms and then proceeding to fill out a Joint Petition for the Court to grant the decree. If the couple has children, the process requires additional steps as will be discussed below.
Divorce in Washington State
For couples who wish to end their marriage, the law in Washington State provides a process to obtain a divorce. The most frequent basis for divorce in Washington is the irretrievable breakdown of the marriage, or, in other words, that the couple can no longer get along and reconcile their differences. A divorce case can be started on this grounds as long as one spouse is a resident of Washington and either spouse: has spent a sufficient amount of time in Washington State to obtain the necessary residency to file for divorce in Washington, or was married in Washington. The divorce process will start with filing a Petition for Dissolution of Marriage with the Superior Court of the county in which one of the spouses resides (or, if both over the last 3 months have moved from Washington State, in the county in which one of them currently resides). Along with the petition should be filed, when necessary, a document called a Confidential Information Form, and an "Order Appointing a Lawyer for a Child" (if there are minor children involved in the divorce). The first document will serve to initiate the action and the second will help the court determine if a child needs to have a lawyer appointed to represent their best interests. Courts will assume a lawyer necessary when a parent agrees and/or where the lawyers of the parents disagree about the best interests of a child. Assuming the divorce is "uncontested" (meaning that both spouses agree on all aspects of divorce, including property division, child custody, and spousal support), then a divorce could be finalized shortly after it has begun. However, if the divorcing couple does not see eye-to-eye on all or most issues in the divorce, a divorce could take several months, or even years, to finalize. Even after the attorneys, in many cases, and the parties themselves, work out as many issues in a divorce as they can, the court in the county in which the action resides will require a hearing on the divorce, and may require a second hearing if property is being divided; thus dragging out even "contested" divorces.
The Distinction between Legal Separation and Divorce
Legal separation is, in simple terms, a divorce, but without the finality. Either party can convert the legal separation into a divorce after 90 days; however, in Washington State, nothing from the separation changes. All property still belongs to the couple as it did under a divorce. Divorce is a longer process because divorces require the approval of a judge. In a divorce, all property is divided according to community property law. No spouse can take assets from the other under the terms of community property. The judge needs to approve the property division agreed upon by both parties. The same is true for spousal maintenance and child support. If a couple can agree on all the terms of their property division, they still need a judge to sign off on it. If they can’t agree, it’s very likely that they would have to go directly to trial. Going to trial means putting your future in the hands of a judge who knows very little about you and your particular situation. But there are times when a couple can agree on most of their case and, with the help of a mediator, go to court just once for the judge’s signature. Unlike a divorce, a legal separation cannot be converted into a divorce without a judge’s signature after the required 90 days. During the separation, the couple is still legally married so they don’t have to worry about dividing anything or making the big decisions that go with divorce.
Divorce and legal separation are two very different choices in Washington State, outlined below:
Divorce (Dissolution)
Legal Separation
Status of the Marriage
Divorced, former spouses
Not divorced, married
Obligations to Spouse
All obligations must be settled in divorce terms, including:
Legal Separation
Division of Property
A divorcing couple separates all their property, debts, and assets. Washington is a community property state, so all property will be divided equally and fairly across both spouses. Marital assets are everything the spouses have gained during the marriage, considering:
The property division in a legal separation works almost the same as in a divorce, with a couple of key differences:
What’s right for you depends on your situation.
The Advantages and Disadvantages of Legal Separation
Legal separation is often viewed as an alternative to divorce, though many people do not know what it really entails. As the name implies, legal separation involves creating a legal agreement in which you and your spouse live apart. The separation covers financial responsibilities and child custody. It does not terminate the marriage, so couples often view legal separation as a good option for a variety of reasons. However, legal separation also has potential downsides.
One of the most common reasons couples cite for choosing legal separation over divorce is religious beliefs. Many people view divorce as contrary to religious teachings, so taking a legal separation makes them feel more secure in their religious beliefs. In this sense, legal separation is often viewed as a sort of "trial" to see if divorce becomes necessary over time. On the other hand, in most religions divorce is still permitted when a couple has been legally separated for an extended period, so legal separation does not necessarily protect couples from future divorce.
Cost is another reason why couples opt for separation instead of divorce. A legal separation typically involves much less complicated property division or custody issues because spouses are not passing legal judgments on those issues per se. In some cases, certain couples can amicably agree on how to approach separation, making the process even easier.
Couples may also choose legal separation for financial reasons. If you or your spouse expect a significant increase to one of your incomes soon after the divorce, it might be better to live separately on current incomes until the increase happens. Similarly, if your spouse has been waiting to begin a business, a legal separation might make it less likely that the business will be viewed as jointly owned in the event of a divorce.
The potential for reconciliation is also a common reason couples might decide to try a legal separation. In some cases, spouses believe that they merely need time apart to reflect on their relationship. Both spouses might agree that a divorce is likely to happen in the future, but they might want to separate briefly to focus on certain economic or business issues before proceeding with a divorce. While reconciliation can happen after a divorce, it is typically more common when couples are not formally divorced.
Potential drawbacks to legal separation often involve the emotional and mental toll of life apart from your spouse. If you have children, separation might be a difficult adjustment for them, both at the time of the separation and in the coming years. If the parties eventually do end up divorcing, separation might add legal fees and costs of living apart to the costs of divorce in general.
Additionally, once you have separated, discussing reconciliation as the goal of that arrangement will become more difficult. Separation can become the step before divorce in the same way that dating for a few short weeks can become an engagement and then a marriage. Some couples simply never choose to return to a time before separation, which creates the risk of lengthy and costly litigation in the future.
The Advantages and Disadvantages of Divorce
Generally speaking, divorce tends to be the preferred option for a greater majority of individuals seeking to end their marriage in Washington state. Here’s a look at why.
Finality: When you opt for divorce and obtain a favorable ruling, this is a permanent ruling. Your ex-spouse cannot come back into your life at a later date and demand to have issues from your relationship reopened for further discussion and possible modification. In a legal separation case , there’s a much higher likelihood that you will be contacted by your spouse during the period of separation and notified that your ex is in fact ready for a divorce.
Pros of Divorce Over Legal Separation in Washington State
Re-marriage: While legally separated individuals are still married, newly-single individuals who have gone through a divorce have the freedom to date and remarry without being at odds with their ex.
What to Consider when Deciding between Legal Separation and Divorce
Choosing between legal separation and divorce in Washington State is not always straightforward. Each couple’s situation is different, and the option that makes the most sense will vary depending on the unique circumstances of that couple. Here are some factors to consider when making this decision: Whether you have children. If you have children at home, legal separation can be an advantageous option. Separation allows you to divide your marital assets and debts, and create a parenting plan and child support order, without transitioning into the next stage of your relationship in a divorce. This option allows you to maintain a level of distance from your spouse while providing for your children and maintaining the status quo until you are ready to proceed with a divorce. State residency requirements. To file for divorce in Washington state, either spouse must have been a resident for at least 90 days. To file for separation, the residency requirements are virtually the same; however, the law does allow for a divorce if both spouses have lived in the state for at least six months, and child support and custody awards can be issued even if neither spouse passes the 90-day residency mark. Your reasons for separating or divorcing. There are many reasons couples separate or divorce—they’ve grown apart, they don’t trust each other anymore, one person no longer wants to be married, or they are simply ready to move on with their lives. In some cases, couples may even separate to decide for sure if a divorce is in their best interest. The financial implications. If you separate instead of divorcing, your spouse could be liable for child support before a final settlement agreement is reached. Child support can be a burden on your finances, even if you are receiving it. If you have to pay alimony for a specific duration of time, you may receive a tax break—and perhaps even free up some additional cash flow—in doing so. By filing for divorce instead, you will probably be in a position to benefit from a cleaner division of assets, and therefore the final settlement will be larger, allowing for more financial freedom on your part. The ease of getting along with your spouse. Consider how amicable your relationship is. If you separate, will you be able to effectively live "as roommates" until the issue is resolved—even when the situation gets challenging? If you are on good terms with your spouse and can promise to keep the situation civil, legal separation may be fine. If you suspect your spouse will become hostile or if he/she has a history of abusive behavior, getting a divorce now may be a better option.
Legal Support and Legal Aid
Navigating the intricacies of a legal separation or divorce can be complex, especially when it comes to understand your rights and obligations vis-à-vis your spouse. Although many legal web sites today provide a wealth of information on issues such as property division, child custody and support, attorneys typically can resolve many problems more quickly than a person can do on his or her own. Consulting with a lawyer before filing separation or divorce papers, especially one who is specifically trained in the area of family law (one who spends most of his or her practice time in representing clients in family law matters), provides you a critical advantage as you plan your divorce strategy . At the Law Office of Hollander and Henn, we are attuned to the needs of our clients, and will represent you with utmost care and concern. We listen carefully to your concerns and goals, and are happy to answer any question you might have during your divorce or separation. Our office staff are accessible, responsive and conscientious in working with you towards resolving your family law issues.