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A Legal Separation Disassembles A Marriage, But Doesn't End It

Cynthia M. Fox

As regular readers would likely infer, much of my law practice involves representing clients in a divorce. However, I am occasionally asked to assist someone to obtain a "legal separation", which although it "looks like, walks like, talks like" a divorce, isn't one because the individuals remain married to each other, unable to marry anyone else.

Through a legal separation, the court resolves all the same issues addressed in a divorce-dividing the property, entering orders of child and spousal support, establishing child custody and a parenting plan-yet does not dissolve the marriage. Interestingly, the couple is not required to live apart, although continued cohabitation is not something I've encountered.

Someone seeking a legal separation begins by filing a petition where either of them resides. Typically, one spouse represented by an attorney will file the petition, and the other spouse, separately represented, will answer. In many cases, couples begin the process having already agreed that a legal separation is the appropriate end point, but have not resolved the "terms" for that separation, such as custody or support issues. Negotiating these terms becomes the focus of the attorneys and it can proceed as amicably or acrimoniously as for any divorcing couple and, if not settled, taken to trial just as in a divorce.

Couples that have already agreed on a legal separation are often good candidates for working with a mediator to compose the separation agreement. A mediated outcome is usually less expensive than one negotiated between attorneys, even though each party should still review the agreement with their own lawyer to be sure their interests were fairly represented.

Sometimes, one spouse will object to the other's petition for legal separation, almost always wanting a divorce instead. In that case, the objecting spouse should file an answer demonstrating that there is no reasonable likelihood that the marriage can be saved and that it is irretrievably broken, and cross-petition the court for a divorce. There will be a court hearing to decide between divorce and separation based on whether or not the court finds the marriage to be broken and likely unsavable.

Why do some couples choose legal separation over divorce? Often it is to preserve some sort of economic benefit that would be severed once the marriage ended, such as health insurance coverage for a spouse, although some insurance plans have recently closed this "loophole". Accessing spousal Social Security benefits, which are only available to those married at least 10 years, is another reason. Still others opt for a legal separation due to their religious convictions prohibiting divorce.

No matter the motivation, anyone contemplating this option needs to know that a legal separation can be converted into a divorce without their consent if their spouse petitions the court to do so as early as 91 days after the separation is granted. That spouse will need to prove that the marriage is irretrievably broken with no reasonable possibility for saving it. The proof requirements for this claim are not particularly difficult.

For someone whose religious beliefs led them to opt for a legal separation rather than divorce, I wonder if their spouse's attempt to convert it into a divorce would present them a moral dilemma? Would they be obligated by their faith to file an objection with the court? For insight on that question, I consulted with the Judicial Vicar of the St. Louis Catholic Archdiocese about separations, divorce and annulments. What I learned certainly surprised me and may you. We'll cover that in a future column.

For over 25 years Cynthia M. Fox has focused her practice in family law, with a particular emphasis on matters relating to the dissolution of marriage: divorce representation and mediation, child custody and child support. She is a native St. Louis and a graduate of the Washington University School of Law, Class of '73.

Cynthia M. Fox can be contacted by phone at (314)727-4880 or
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