When people are considering a divorce, one of the first questions they have is about whether they need to go through the legal separation process first. Because there are many misconceptions and myths surrounding legal separation and divorce, it’s important to know the difference between the two and whether you really need to go through a separation before a divorce.
Legal Separation Versus Divorce
In the state of Washington, legal separation and divorce are actually very similar—but there are a few key differences, including:
- You cannot marry someone else. When you’re legally separated in Washington, you are still technically married in the eyes of the state. This means you cannot get re-married if you enter a relationship with someone else unless you proceed to a full divorce first.
- You must wait six months for a divorce. When you go through a divorce, there is a 90-day waiting period before the decree of divorce can be issued. When you legally separate, you must remain so for at least six months before the court will accept a conversion to divorce.
- Legal separation is not a divorce. The name itself matters to some people for moral or family reasons, religious beliefs, or personal preference. Some people or religions have a preference to avoid divorce. Legal separation allows a way for some people to go their separate ways without ever officially being “divorced.”
- Legal separation may let you keep insurance. When you get divorced, most insurance policies (such as health insurance) won’t let someone who isn’t married stay on a family policy. By contrast, many policies allow legally separated partners to remain on a shared policy. It’s important to check with your insurance agent or insurer about this.
The procedures for a legal separation are nearly identical to those of a divorce. The same legal statute in the Washington Revised Code applies to both, and the same standards of asset division are followed. That is, alimony is calculated the same way, parenting plans for child custody are formulated in the same way, and any community property is divided up equally, just as with a divorce. The paperwork filed with the court is also almost identical.
Separation Before Divorce
You do not need to legally separate before a divorce. In fact, it may be against your own best interests to do so—many, if not most, legal separations end in divorce anyway. In most situations, a legal separation prolongs the process of starting your new life, since you must wait at least six months to convert a separation to a divorce.
Some couples choose to use this time to engage in marriage counseling or other therapy and attempt to reconcile, under the logic that a six-month deadline provides some incentive to work things out. After all, the decree of separation can be reversed if both parties agree and file a motion with the court. On the other hand, it’s also just as easy to convert the separation into a divorce because the legal separation already has laid the groundwork for the divorce, and both parties have likely been living as though divorced during that time.
Legal Help With a Separation or Divorce
Even if you choose legal separation instead of divorce, it’s still a good idea to have an attorney on your side. Remember that asset division, child custody, and spousal support are all negotiated as a part of legal separation. Should you wish to transition to a divorce after the six-month waiting period is up, you’ll already have an attorney who is familiar with your situation to help protect your rights and ensure that you get your fair share of marital property.
If you have questions or concerns about your legal separation, the Law Offices of Molly B. Kenny is here to help you. To arrange a private consultation in our Bellevue offices, please contact us by phone, or use our contact form to send an email today.