What is a Legal Separation and What are the Main Benefits?
When it comes to ending a relationship, the word “separation” can be a confusing term.
While there are many different types of informal separations, there is only one legal separation recognized in the state of Ohio. A legal separation does not terminate a marriage, and you are not free to remarry. Under Ohio law, there are only three ways to terminate a Marriage: Divorce, Dissolution or Annulment.
What is a Legal Separation?
During a legal separation, the marriage remains intact, but in a dissolution or a divorce, the marriage is ended. In Ohio, a person must file a complaint with their local county’s Court of Common Pleas to initiate a legal separation.
The issues addressed in a legal separation are similar to a divorce or dissolution. These issues can include spousal and child support, custody, property division and debt payments.
If at a later time either one of the spouses decides to go ahead with dissolution or divorce, the conditions of the legal separation agreement usually serve as a basis for the terms of this divorce or dissolution.
In Ohio, legal separation is a distinct legal procedure, not just the first step to getting a divorce or dissolution.
Having a legal separation is not required to file a complaint about divorce or petition for the dissolution of a marriage. It’s important to know that a spouse served with a complaint about legal separation is within their rights to respond with a counterclaim of divorce.
If this happens, Ohio courts will treat the case like a divorce or annulment and not separation. The marriage will be terminated. Legal separation can only take place if both parties agree to do so.
Since property rights have been determined in a legal separation, if one of the partners acquires any property after the legal separation has been granted, it is usually not subject to division by a future divorce or dissolution.
Isn’t a Legal Separation Cheaper and Quicker?
Often couples are under the illusion that a legal separation is cheaper and faster than a divorce or dissolution.
In Ohio, this is not the case. Ohio Family Law requires a couple to take action very similar to a divorce. In both a legal separation and divorce, Ohio law requires the court to determine support for children and create a parenting plan. If you have children, you should read this quick post on shared parenting.
It is also required to divide all property, income, and debts. The rights of inheritance are terminated. If spousal support is requested, the court determines if it is needed and at what amount.
A separation can be just as expensive as a dissolution or divorce. It will take around the same amount of time as a divorce, you are still required to serve notice to your spouse like a divorce action, and the rules of evidence and discovery are the same. Obtaining a legal separation instead of a divorce is usually not beneficial because if either spouse decides at a later date to file for a divorce, they will have to spend more money to do so.
Legal Separation vs. Separation Agreement
The term “separation” is often misunderstood and misused. Since Ohio family law mentions both legal separation and separation agreement many people think they are the same thing. While a legal separation is an adversarial process similar to a divorce action, a separation agreement is a document required in a dissolution filing.
Unless they have physically lived apart for a year, a legal separation requires that one of the parties sue the other one based on one or more of the ten grounds listed in Section 3105.17 of the Ohio Revised Code.
A separation agreement is made in contemplation of marriage termination and is one part of the dissolution paperwork required by the court. In a separation agreement for a dissolution, the parties have to agree on every provision contained in the agreement and agree to be bound by the terms.
A family law judge will then adopt the provisions outlined in the legal separation agreement and make them legally binding.
Why get a Legal Separation?
So why would someone want to file for a legal separation instead of a divorce or dissolution? A legal separation is often used by couples who want to live separately but permanently divide their property.
It’s not too common, but there are situations where spouses chose a legal separation over a divorce or dissolution. Most often couples choose legal separation for one of the following reasons:
- Religious beliefs.
- Medical insurance issues.
- Tax incentives.
- Retirement benefits.
- Family customs, traditions or beliefs.
- The 6 month Ohio residency requirement hasn’t been met.
If you are legally separated, it will remain in effect until the parties reconcile or one of them takes further action to terminate the relationship.
If you have a decree of Separation, you are unable to remarry and can have other issues that involve tax filing as well as what happens to liabilities and assets if one of the parties becomes physically or mentally ill or dies. As long as the legal separation has been filed with the courts, the couple is governed by the agreement, which is enforceable through the court.
Legal Separation or Divorce?
How is legal separation different from a divorce or dissolution? The key difference between a decree of divorce and legal separation decrees that the couple is still legally married, even though they no longer share a residence.
During a legal separation, the marriage remains intact whereas in a dissolution or divorce the marriage is permanently terminated.
Have more questions about the issue of legal separation versus divorce? Contact Jack's Law for a free phone consultation at (740) 369-7567.