Divorce or Separation
Divorce: In divorce, the marriage is formally terminated, and all family assets and responsibilities are divided and transferred in accordance with legal agreements and judicial decisions. Assets and responsibilities can include custody, child support, property division, and spousal maintenance (commonly called alimony). Legal Separation: Separation is an alternative to divorce . In legal separation, a formal agreement or judicial decree divides assets and responsibilities between the couple but keeps the marriage intact. Legal separation offers some of the same benefits as divorce, including establishment of custody, child support, property division, and spousal maintenance. Legal separation also reserves the right to revert to Marriage if the couple decides they want to reconcile, seeing separation as a strain reliever, not a marital ending.
What Happens Once You File for Divorce?
The process of filing for divorce begins with the initiation of a lawsuit between the spouses. While most people don’t think of divorce as a lawsuit, it is. Once one spouse files a divorce complaint, the other spouse must respond to the complaint. When a divorce complaint is filed, the filing spouse will have to serve the complaint on the other spouse. This can be done by personal service, certified mail, or in some cases, even publish notice in the newspaper. Once served, the other spouse will have twenty days to answer and counterclaim or respond to the divorce complaint. This step is critical to protect your rights, and ignorance of the time constraints has caused many people to lose their rights to valuable assets and monetary support.
Legal separation is sometimes used as a first step in filing for divorce. While you may be separated and living apart, you are still married. Divorce is not the same as separation. Once you decide to file for divorce, you will no longer be legally separated.
Once the divorce complaint is filed and served, the parties are in the litigation phase of their divorce. During this phase, the case will be actively litigated in the court system and the parties will be expected to comply with all court rules and abide by the directions and orders of the court. Failure to comply with the court is contempt of court which means that the court will impose sanctions on the non-compliant party or even jail them for disobeying the court’s order. This could include your spouse battling out the custody or support issues with you in court and/or demand that the courts intervene in the property or financial disputes.
In many cases, the marital estate will need to be valued, and experts, such as real estate appraisers, business evaluators, or pension evaluators, may need to be ordered to testify before the court. Depending on the circumstances of your case, another type of evaluation might be needed such as, a vocational evaluation, with regard to your earning capacity, or a mental health evaluation to determine the best interests of the child or children. Once the experts are brought into the case, the litigation phase becomes very expensive.
Once the case is in litigation, negotiations between the parties will be ongoing until the parties reach an agreement or proceed to trial. A Trial is the last resort for divorce clients as it is an expensive proposition, and generally does not provide the satisfaction that people expect. Once the judge renders a decision, both parties are bound by the final judgment that is presented to them. An appeal can be taken from an order, but it is costly and time consuming and could up to six months to obtain a decision and cost well over $10,000.00.
Bottom line, hiring an experienced family law attorney who can navigate the litigation process on your behalf is critical to protecting your rights.
Are You Legally Separated if You File for Divorce?
When you file for divorce, does that make you legally separated? I am constantly asked about the difference between being legally separated and being divorced. I have written about this in previous blog posts as well. In its simplest form, legal separation means you remain married, but you are living separate and apart from your spouse. You can settle all of the issues of property division, spousal support and child custody but you remain married to this person. Getting legally separated does not mean getting a divorce. However, if you’ve been legally separated for a long time and the separation agreement or court order determines support to be paid, issues of property division or child custody and parenting time, you might be out of luck on getting a divorce unless the other person agreed and consented to divorce. There is nothing in the law that would allow you to have the divorce brought before a judge years later and have a judge order that party to sign a divorce. Legally separating does not mean the divorce is on the horizon. The parties can decide to remain separated for the indefinite future. If one party moves down that road though, the other party can file for divorce right away. The parties can be legally separated for years and years. It is like holding a marriage license hostage for a good period of time. There are some jurisdictions that do not ever even recognize legal separation. Some jurisdictions say there is no such thing and you are either married or divorced. Many people misunderstand what legal separation means, and they think they are getting a divorce but are not. They are waiving rights to getting a divorce. And in some cases, alimony or spousal support rights of some form are being waived because they are agreeing to be separated.
Pros and Cons of Legal Separation
A legal separation can offer many marital benefits while minimizing some of the economic pitfalls that arise out of divorce. A trial separation can also give you and your spouse time to work out disagreements and figure out if a complete separation would be better.
For some, a legal separation can simply delay the inevitable. What may seem like a first step toward reconciliation may prove to be instead a time period for gathering the necessary resources to pursue a divorce.
Financial factors weigh heavily in weighing the advantages and disadvantages of legal separation. For example, if you decide to separate but choose not to obtain a final divorce, you could avoid certain financial burdens such as:
You may also want to separate rather than divorce for child-related reasons . For instance, if you still want to be able to hold on to your spouse’s health insurance benefits, a legal separation could help.
Divorce, in many respects, may be the easier road to take than a separation. It is often easier to come to the same terms as your spouse repeatedly through a separation than it is to do so during a divorce. And if you are not comfortable going to court for a divorce, it can seem like the only option.
With legal separation, your spouse will remain your spouse for legal and tax purposes. Although Utah recognizes irreconcilable differences as grounds for divorce, California acknowledges "irreconcilable differences" as the only grounds, but without proof necessary.
What Legal Options Can Be Pursued and Next Steps
When a couple has decided whether divorce or legal separation is the best option for them, certain legal considerations and processes must be followed. Familiarity with these next steps can streamline the transition to living apart.
Legal paperwork for both divorce and legal separation involves filing a case in the court system (the domestic relations division of the circuit court in the county where either spouse has lived for the last 90 days). Necessary documents include a petition for divorce or petition for legal separation, a summons, and, if there are minor children in the marriage, a parenting plan questionnaire. These documents must be filed by the spouse who is seeking to initiate the divorce or legal separation.
In Illinois, the legal process for divorce and legal separation are almost identical. The main difference is that when a petition for legal separation is filed, the court does not grant it until the parties have been separated for six months. If after that time, they find that they want to proceed with the legal separation, the court will grant it. If after the same time frame they find that they would like to reconcile, they can proceed with the divorce.
If the parties are in mutual agreement about the separation or divorce and, more importantly, about how property should be divided and any custody issues with minor children, they can save time and money by filing a joint petition for the dissolution of marriage along with a marital settlement agreement outlining all of these decisions.
If one spouse is in full agreement with separation or divorce, but the other is resistant, he or she should still file their own petition with the court before moving out. This will give the filing spouse a number of advantages later on in the process, especially with property division.
After filing, the spouses will have to wait at least 60 days before the courts schedule a hearing on the divorce or legal separation. Even though the waiting period is longer, it is important to be prepared for court as soon as possible after the filing.
For couples who have no minor children, documents that need to be signed at the time of dissolution, typically include a judgment for dissolution of marriage. If there are minor children, there are other documents to be signed, including:
When a couple has minor children, the courts require that they attend a court orientation facilitated by a court services employee. It is also necessary for one or both spouses obtain a certificate of completion from a parenting class. Other requirements for parents with children include mediation of custody and decision-making responsibilities (if applicable) and a child support order.
It is important to note that although divorce and legal separation proceedings are formal, one spouse cannot "file" to make the other spouse move out. A judge can issue an order for the other party to move out of the house during the proceedings, but this is done on a case-by-case basis.
Although many spouses may try to navigate the legalities of divorce and legal separation without help, this is not recommended. There are many pitfalls that divorce and legal separation lawyers have seen couples fall into. Most people, even relatively amicable couples, do not know how the divorce process works, what the law is, and how rulings are interpreted. With the right lawyer guiding the way, spouses can save themselves from being blindsided by something unexpected later in the process.
An experienced divorce lawyer will also be able to offer guidance on many other factors outside of dissolution alone. For instance, custody laws can vary from state to state or even within counties. A knowledgeable lawyer will be able to help the spouses understand whether going to court is appropriate in their situation, or if an alternative can be found that satisfies both spouses.
Impact on Children and Family Dynamics
Both divorce and legal separation can have a significant impact on children and overall family dynamics. While the law assumes that an intact, married couple will parent their children, custody and parenting time are not necessarily negative for children when parents are no longer married or in a relationship with one another. This is particularly true for children who are old enough to be part of the discussion regarding their relationship with both parents and what a parenting plan might look like. Children’s ages often dictate how likely it may be that parental conflict will affect them and many mental health, group and social support systems exist to help families (including children) navigate divorce. It is helpful for parents to keep in mind that children are often upset about the divorce itself. They may feel that they are to blame for their parent’s divorce and need some reassurance that this is not the case. Once the parents have come to terms with their decision, it is important to keep the child’s best interests at the forefront. This includes speaking respectfully to each other and to the children about the other parent. Communicating the divorce to your child or children depends largely on their ages and maturity level. While it is generally safe to avoid giving children many details about the reasons for the divorce , it is a good idea to be honest at a very basic level when you do communicate it. For example, "We have decided that we will be better off living apart," is simple enough to explain without some elaborate, generalized story. In general, the simpler the explanation, the better. It can also help to remind children that they did not cause the divorce and that it’s not their fault. Families should also consider getting counseling or therapy during this time. While it isn’t required, talking to someone outside the family may help parents get through this difficult time and encourage healthy communication and positive change. As part of the custody arrangement, it’s a good idea to discuss behavior to avoid in front of the children. By creating a code word or signal to indicate when parents need the children to step out of earshot, it can reduce the chance of having damaging arguments where children could overhear. For parents, the most effective means of reducing damage to their children is to take the focus off of each other and onto their children. Working together toward a common goal, that being the children, produces the best results.