What Does It Mean to Be Legally Separated?
The legal definition of Legal Separation in Washington is that it is a "court-decreed termination of the marital community." Legal separation is akin to a divorce without actually terming it as a divorce. As a practical matter, the main difference is that, with a divorce, at the end of the process, the marriage is dissolved and neither party is married to the other.
In a legal separation, you can even still return to the marriage if you want to. However, the value in having a legal separation is to legally divide your interests, your property, and your debts, subject to later modification once the parties reunite, or divorce.
In fact, legal separation can prevent disputes about whether certain property will be valuable later on . Preventing that type of litigation over property that was unique to the parties prevents litigation tailored to being more costly than being beneficial.
Also, like a divorce, in a legal separation you will have orders regarding parenting plans or parenting proposals, residential schedules, child support, maintenance (alimony), property division, debt allocation, and attorney’s fees. However, the legal separation is less permanent for all those things, unless you have stated differently in your decree.
In Washington State, legal separations are rare. According to the Washington State Bar Association, only about 3% of all family law cases in Washington State end up with a legal separation. The most common outcome is a divorce, and the next after that is both getting along and resolving their matter amicably (also known as meditating their lawsuit).
How the Legal Separation Process Works in Washington
In Washington, a legal separation is available to spouses who prefer a legal arrangement that is less permanent and less complicated than divorce. This process includes the following steps: The Dissolution Petition: As with divorce, the process begins by filing a petition with the court. In a legal separation, however, the petition states that you and your spouse intend to remain married. The petition will also state that you and your spouse have irreconcilable differences. You don’t need to provide any further detail as to the reasons for your separation. The petition, or summons, will contain the name of each spouse and their children, the date of marriage, a jurisdiction statement and a definition of relief. Filing the Petition and Notice: If you have minor children when you file for legal separation, a notice that will be sent to your spouse to give them opportunity to respond. The notice will include information on whether you are requesting a hearing and will provide the date and time of the hearing if you did request one. If you are not requesting a hearing, the court may issue a temporary order granting the proposed relief if it is in the best interests of the children. If you do request a hearing, either party may request that it be scheduled no less than 90 days after the petition is filed. Response to Petition: Once you have filed your petition for separation, your spouse may file a response within 60 days notifying the court of their counterclaims and requests. Either party may continue to pursue the case by filing a response to the other party’s motion within 60 days of the filing of that motion. Hearings: The court will only schedule a hearing within 30 days of the expiration of the time for filing a response if requested by both parties and if the case involves children. If there are no children, the process typically takes 90 to 120 days and concludes once all hearings have taken place. Any other divorce or separation case can, at the request of either party, be expedited to be heard sooner than usual if: The laws and procedures surrounding legal separation and divorce can be complex. The guidance of an experienced Washington family law attorney will help clarify your options and improve the likelihood of a successful separation or divorce.
Advantages of Legal Separation
In some case, parties may choose to pursue a legal separation rather than a divorce. In some cases, this can be a good idea. There are a number of potential benefits.
Financial advantages. Getting a legal separation rather than a full divorce can have some financial benefits. To begin with, a couple seeking legal separation does not pay a filing fee to the court. Additionally, the process of legal separation can be less expensive than divorce. This is particularly true if determining the division of assets and debts is complex.
Emotional benefits. For some individuals, the idea of divorce is intolerable. If your objective is to reside apart and you and your spouse are otherwise in agreement on the related issues, then a legal separation is acceptable in Washington. It will permit you to live separately, but to still be married if so desired. It can also provide a couple with some space to allow them to know whether or not permanent divorce is the right choice.
Health insurance benefits. Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), if you have employer-sponsored health insurance, you can continue that coverage for up to 36 months after separation, if you pursue a divorce either by way of a mediated settlement or through litigation. However, if you are divorced, you must obtain your own health insurance coverage. There is no COBRA coverage available after divorce. And while those spouse and dependent on employer-sponsored health insurance coverage do not have to pay, it’s wise to consider this cost.
Child-related decisions. In the case of women who wish to retain their husband’s surname for their children, even though they are getting a divorce, it may be necessary to seek legal separation instead.
Legal Separation Versus Divorce in WA
In Washington State, legal separation is a court order (a decree) that allows a married couple to live apart. They do not seek divorce but rather peaceful cooperation with respect to the issues that must be worked out in joint cooperation if they are to remain married and separate in the future.
In a divorce, once a court grants it, the couple is permanently separated from that moment forward. In a legal separation order a couple remains, in law, married to each other, but they are legally separated from the day the order is granted.
There may be many reasons to work on a legal separation order, rather than proceed immediately to divorce. Some people have strong religious reasons and want to remain married at all costs. Others may need or desire to stay on the health insurance of their spouses for a period of time in the future, or retain certain tax benefits that would be lost if they divorced. For others, it is just a way to buy some time before making a final decision and move on to a divorce.
In any event, legal separation provides a time frame to resolve a situation calmly and without acrimony, with the prospect that the marriage might be saved in the future.
Washington State, as most all states, makes provision for legal separation in RCW 26.09. It treats legal separation orders the same way as divorce proceedings, with some exception being that there is no requirement with respect to dividing community property in the same manner as is required upon divorce.
Other than that, it is treated in the same way as a divorce proceeding including a decree being entered, and any subsequent modification, steps that must be taken before a decree can become final rather than provisional, temporary orders to regulate the parties’ lives pending a final decree, modification of a final order when called for upon a showing of changed circumstances, and so on.
Of course, the same parenting plan provisions and requirements apply, and like a divorce decree, an initial parenting plan or child support order may be made final and left unchanged for up to five years in the first instance.
Legal separation is another tool available to people who are thinking of divorce. Sometimes it works out very well in reaching a final resolution of the parties’ needs and obligations, and sometimes the parties conclude that there is no more value in trying to save the marriage. At that point, rather than spend a lot of time and money going back through the same issues a divorce is usually entered by the court, and the turn of events can take place.
One of the most important things to keep in mind is the same standards apply to a divorce as to legal separation in the state of Washington. There is no additional benefit to proceeding with a legal separation order, as opposed to a divorce proceeding.
Whatever course of action one chooses to take, it is a good idea to consult an experienced family lawyer to make sure that you are prepared for the process and decisions you must make now and in the future.
Ways You Can File for Legal Separation in WA
First, it is required that you are a resident of the state of WA for at least six months before you can file for legal separation. This is equally important even if both parties do not reside in Washington but the petition is filed within the state. You can file a petition with the county court clerk to begin the process. The filing fee in WA for Legal Separation starts at $265, but sometimes costs more depending on how complex the separation is. The responses and subsequent hearings that are required could be additional costs. You will also need to pay for the filing service and notary fees. After establishing grounds for separation you will need to deal with the properties and finances you share with your spouse.
You may have to attempt mediation with your spouse to separate your assets and finances. This cost may or may not be included in your overall costs when filing. It highly recommended that you hire an attorney to simplify this process for you. If you know ahead of time that you and your spouse will share property in the separation process and make custody decisions, then consulting an attorney could save you time and money down the road.
After establishing separate finances, visit the clerk’s office at your county court to file a summons with your petition. You will have to wait until your spouse responds to your summons which generally takes a minimum of 30 days after it has been received. If the response is in agreement, then the petition will go through the questions and the judge can sign off on the separation. However, if it is not in agreement then you will have to go through court summons and trials to establish agreements.
Impact of a Legal Separation on Child Custody and Child Support
As in the case of divorce, another key consideration in a legal separation is child custody. As in the case of divorced couples with children, parents who are legally separated can either come to agreement about child custody and parenting plans, or the Superior Court can decide the matter based upon what is in the best interest of the child. In the case of legal separation, parenting plans that have been agreed to by the parents are typically seen as a good idea because they provide structure and support for children as they adjust to changing circumstances. A court-mandated parenting plan is often less desirable because the parents did not have a say in creating that plan. Much like divorced parents , custodial and non-custodial parents who are legally separated are required to support their children. Again, this support can be negotiated and agreed to by the parties involved, or mandated by the court. The important thing is that the welfare of the child be taken into account when deciding how much child support is required and who should pay it. The process of negotiating a separation agreement can be complicated and stressful. Whether or not a legal separation is in your best interest is something that should be discussed with an experienced family law attorney.
Financial Aspects of Legal Separation
Division of property and debts is another key financial consideration to be addressed in a legal separation. In Washington, debts and assets acquired during the marriage are considered community property and are generally divided in half. Property acquired before the marriage, or acquired by gift or inheritance during the marriage, is considered separate property and typically will be awarded to the spouse who acquired it. Child Support calculators may be used to determine the amount of child support to be paid.
In deciding whether a spouse should be obligated to pay spousal maintenance, several elements are analyzed by the court. The first is the economic need of the requesting spouse, the other is the ability of the paying spouse to Pay. Spousal Support awards equal to that which might be awarded in divorce matters are common; more often other amounts are agreed upon between the spouses.
A budget documenting living expenses should be prepared prior to deciding whether to proceed forward with a legal separation or a divorce. Living expenses are often misunderstood by the spouses, especially spouses in a long-term marriage where one spouse did not handle the day-to-day budget requirements. In order to determine if a legal separation or divorce is desirable, the spouses must determine whether the post-separation and post-divorce budgets are achievable.
Using Counseling and Mediation in a Legal Separation
Counseling is a confidential therapeutic relationship with a trained mental health professional to help individuals and families assess their situation, identify behavioral patterns, which might be worsening the situation and assist in either reconciling or preparing to separate. Counseling can also be useful in situations where the couple is separated, but they want to reunite or need to figure out how to be together if one spouse is living in a different location and they have children. Sometimes couples will try counseling as part of the decision making process prior to separating, or when first separating in order to guide their decisions. In Washington, counseling is voluntary.
One excellent resource for couples considering parenting after separation is Common Purpose where you can read, in your own time, how to raise children apart in a healthy manner.
Mediation is a voluntary process by which a neutral third party facilitates the process for a couple to reach resolution on terms of separation. The mediator does not give advice. No matter what the mediator suggests, it is up to the parties to accept the suggestions. The process is non-adversarial so that the family can agree on a solution which works for both parties rather than an adversarial process like litigation which is focused on the outcome rather than the process.
There are many good resources regarding mediation on the web – here are a few worth investigating.
The "Parenting After Separation" (PAS) program is a one day seminar for separating and/or divorcing families conducted by public and nonprofit organizations as a community service. Frequently conducted in cooperation with the court system, the goal of PAS is to provide information to help end the negative impact of parental conflict and to teach parents how to be a positive influence on the lives of their children.
Another option is "Children’s Issues in the Washington State Courts" – A Resource Guide for Judges and Court Staff.
If the parties are unable to reach an agreement voluntarily then binding arbitration may be the best option. This type of process occurs when the parties submit all proposed orders to a neutral third party who then hears each party’ point of view, similar to mediation but the result is binding.
Frequently Asked Questions About Legal Separation in Washington
Q: Is legal separation mandatory in Washington before filing for divorce?
A: There is no such requirement in Washington. However, many couples choose legal separation to help decide whether to completely dissolve the relationship. In fact, there’s a six-month waiting period for dissolution after a legal separation.
Q: What are the grounds upon which one can file for legal separation in Washington?
A: Washington state law allows a person to legally separate from a spouse without blaming the other for the break-up. When one of the spouses decides to file for legal separation, it can be on the grounds of:
— Conviction of a felony
— Abandonment
— Domestic violence
— Living apart for at least 1 year
— Emotional or physical abuse
Q: Does legal separation require approval by a judge?
A: Yes, a judge has to approve a legal separation, which involves the inclusion of several vital factors. The requested separation must contain the following information:
— Grounds for the separation
— List of assets, debts and income
— Proposed order addressing child custody and support
— Proposed order addressing spousal maintenance
Q: Is alimony or spousal maintenance determined during legal separation proceedings?
A: Spousal maintenance is determined at the time of legal separation under Washington state law. This requires complete financial information of both spouses to be made available to the court.
Q: Do I have to physically stay separated from my spouse while going through legal separation?
A: Although this does not constitute a requirement , most spouses prefer to live apart before they get legally separated from each other.
Q: Will my credit score be affected when a legal separation is filed?
A: No. Your credit score will not be negatively impacted بمجرد notarized separation agreements are signed. As long as bills are paid on time and all the details of the agreement are adhered to, there should be no impact on the credit scores of either spouses.
Q: Do I have to file for legal separation jointly with my spouse?
A: You don’t have to file jointly for legal separation with your spouse. In fact, most of the time it’s a unilateral agreement. Spouses who sign up for legal separation often agree on the aspect of living apart, even if they do not want a divorce yet.
Q: What if my spouse conceals information at the time of legal separation regarding community property?
A: The documents submitted to the court at the time of legal separation by one spouse are normally binding in the future. When a spouse hides a household or business asset at the time of legal separation, then the hiding spouse can be held in contempt of court.
