Legal separation may be pursued if spouses want to protect themselves financially without filing for divorce. In a decree of legal separation, the Court cannot dissolve the marriage, but can grant relief such as spousal maintenance and disposition of both assets and debts.
A legal separation is not awarded to one party or the other. A decree of legal separation does not change the parties' legal status as a married couple. The rights and obligations of the parties may be modified, but their married legal status remains.
One of the benefits of filing a petition for separation is that spouses can work on their marriage but preserve their legal positions. If the parties decide to reconcile it will not vacate or void a decree of legal separation which may be beneficial if the spouses are prone to break-ups.
People frequently pursue separation is to retain medical insurance or other status-related benefits that would terminate upon dissolution of the marriage. Others may pursue due to cultural stigmatizations regarding divorce; therefore, a separation may be a preferred course of action. Additionally, many individuals view a separation proceeding as a gentler approach to ending a marriage. A separation may serve as a transition period and if a party later changes his/her mind and wants to pursue a divorce, then an amended petition may be filed or a motion to convert legal separation to dissolution may be pursued.
Below is a brief summary of how a case progresses if you decide to file a Petition for Separation:
- Petition: To get the separation process started, a petition needs to filed. The person who files the Petition is known as the "Petitioner" and the person who responds to the Petition is known as the "Respondent." It is essential to file the Petition in the correct court; failure to do so may lead to a dismissal. Along with the Petition, the Petitioner must also file a summons, confidential information form, and vital statistics form. Once these documents are filed, a case number will be assigned. The Petitioner needs to ensure that the Respondent is personally served with the summons and petition. If personal service is not a possibility, other remedies can be pursued.
- Case Schedule: Once a case is filed and served, the Court will issue a case schedule which includes a trial date. The trial day is usually set at least one year after from the date of filing. This does not mean that the parties' have to wait a year before a decree of separation is finalized. The spouses can file agreed orders anytime before trial but must wait at least ninety (90) days after the date of filing and serving the initial paperwork. It is very important for each party to abide by the case schedule; failure to do so may lead to a dismissal of the case.
- Response to the Petition: the Respondent needs to file their Response to the Petition for Separation within twenty days of being served. The timeline is prolonged if the Respondent resides and is served out-of-state. If the Respondent does not file his/her response, then the Petitioner can ask for Default. Default essentially means that they are telling the Court that the Respondent is not interested in participating in the case; therefore, the Court should grant everything that the Petitioner has requested in his/her Petition. This can obviously have huge implications if assets, debts, spousal maintenance, child support, and a parenting plan are on the line.
- Temporary Motion Hearing: many people will need to have a motion hearing for temporary orders to have the Court decide what should happen while the case is awaiting trial. A party may need the court to decide: (a) a temporary parenting plan; (b) temporary child support or spousal support; (c) which spouse has to pay which bills or debts until trial; (d) what property each spouse gets to possess until trial; (e) which spouse gets to live in the marital home until trial; (f) whether a restraining order or protection order should be implemented; and/or (g) whether one side should pay the other's attorney fees. These hearings are very important and carry a lot of weight at the trial.
- Discovery: before a case goes to trial or settles through agreement, typically both parties need to conduct his/her own investigation, known as "discovery." Discovery may be important to verify each side's assets and debts, as frequently one party may have historically been in charge of the finances. Other concerns that frequently arise is that one spouse has hidden or shifted assets. By hiring an attorney, discovery tactics can be utilized to track down assets and ensure compliance with mandatory disclosures. Additionally, an attorney can seek relief from the Court on the aggrieved spouse's behalf if significant transfers were made after the case was filed. Discovery is not just important for assets/debt cases, it is also essential for a parenting case. Proper discovery methods can ensure that you find all of the other side's hidden skeletons in order to ensure that the court has all the facts needed to keep your child safe. The typical discovery mechanisms include: Interrogatories and Requests for Production, Appraisals for homes, Depositions, Subpoenas to Banks; however, sometimes, parties will retain experts. In a child custody case, one of the best discovery mechanisms is to ask the Court to appoint a Guardian Ad Litem. A Guardian Ad Litem serves the children and is required to investigate both parents, interview the child (if age appropriate), and recommend a final residential schedule to the Court.
- Mediation: Typically both sides are required to attend mediation before a case can go to trial. There are exceptions for some domestic violence relationships. Most family law cases resolve out of the courtroom, so it is very important to attend a mediation fully prepared and to understand when to walk away if you cannot reach an agreement.
- Trial: If all else fails, then the parties will go to trial. Trial does not just mean that you walk into a courtroom and tell your story; you have to provide trial briefs, statements of evidence, and working copies to the court which contain all of your exhibits. You will need to ensure that your witnesses are lined up and that you can present your case in a logical and chronological fashion so that the judicial officer can follow along. However, there are also certain nuances that may seem overwhelming to some people, such as the rules of evidence, objections, and how to introduce exhibits. While you absolutely have the right to represent yourself at trial; you will frequently hear judges repeatedly ask said individual if they are sure that is what they want to do.
If you would like to discuss your options regarding a separation, please contact Malone Legal or call us at 425-361-0687 for a consultation.
