Many of our clients come to us with the intent to legally separate from their spouse instead of getting a divorce. At least in the beginning. We find this is often because people have varied ideas about what a legal separation really entails in the state of Washington. Many think it is far less complex than it actually is. As it turns out, the difficult decisions that we must make in a divorce cannot be avoided by “simply” getting a legal separation instead.
Common Misconceptions about Legal Separation
The common misconceptions about a legal separation can be boiled down to these three:
- Everything remains the same, we just have separate finances.
- Legal separation is so much easier with fewer decisions, paperwork, and expense than a divorce.
- It is much less stressful to negotiate a “temporary” legal separation than to take on the daunting process of a divorce.
“Contrary to a common misconception, legal separation is NOT a probationary version of divorce. Rather, legal separation and divorce are nearly identical under Washington law, with the same legal process, relief, and finality.”According to Sam Darling, attorney at Genesis Law
In fact, as all attorneys will point out, legal separation and divorce are governed under the same statute in Washington state, Chapter 26.09 RCW.
Therefore, if you are seriously considering a legal separation instead of a divorce, ask yourself these questions:
- Are there specific benefits that my spouse and I want to protect under a legal separation that we could not otherwise in a divorce? (ie: tax benefits, insurance coverage, etc.)
- Am I ready to separate my family’s finances, assets, debts and households?
- Am I okay with my children splitting time between two households? Do my spouse and I have an agreement as to what this would look like? Am I okay with creating a child custody schedule / parenting plan along with child support provisions?
- Am I ready to pay financial support to my spouse separate from child support?
- Do I want to keep my spouse on my health care plan, retirement plan and other benefits plans? Even if he or she may start dating other people?
- Do we agree that we want to work on reconciling ultimately? Or if we do not want to reconcile, do we both understand that we cannot marry another in the future?
- If my spouse decides to convert the legal separation into a divorce decree, will I be confident that I have all of the provisions addressed in the legal separation that I would want in a divorce?
If you answered yes to all of these questions, legal separation might be the right option for you.
Now that you see how similar legal separation is to divorce in our state, you might ask, why would anyone opt for a legal separation?
Here are some key reasons why people choose to legally separate but remain married:
- One or both spouses opposes divorce based on religious reasons.
- The couple realizes a significant tax benefit that they wish to protect.
- One spouse wants to remain eligible for the other’s government benefit (such as a military benefit or social security).
- One spouse wants or needs to remain on the other’s health insurance plan.
- There is a strong possibility of reconciliation.
- The couple needs to remain married to secure the immigration status of a spouse.
- Both spouses are at a stage in life where they do not wish to marry another, they want to hold on to the legal benefits of marriage while living as single people.
In conclusion, it is always best to talk with an experienced attorney when deciding if a legal separation is right for your unique situation.
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