What Is Legal Separation in Washington?
Under Washington State law, legal separation is defined at RCW 26.09.104(1)(a) as the "status of being married but living separate and apart" or, in other words, living separately and apart from your spouse while still remaining legally married. Legal separation is also a court process meant to "define both spouse’s legal rights and responsibilities." In this way, a legal separation decree is extremely similar to a Divorce Decree. The only major difference between a Separation Order and a Divorce Order is that you remain legally married after the Order is finalized—a legal separation is not a final divorce.
Some marriage dissolutions start as legal separations, especially when children are involved. Instead of going straight to divorce, the parties enter into a legal separation for a fixed period of time, perhaps one year. During that time, they can work out co-parenting arrangements, dividing property, and more in an informal way that gives everyone time and space to cool down before finalizing the divorce . After the year is up, or after whatever time period the parties mutually agree to, they go back to court, negotiate the remaining issues, and finalize the divorce.
To receive a legal separation in Washington, the parties must complete a petition, serve the other party with notice of the petition (and file proof of service), and go to court. Like a divorce, the grounds for legal separation are based on the irretrievable breakdown of the marriage (i.e., an irretrievably broken marriage).
Legal separation matters are processed through the Superior Court, so it is typically necessary to retain an attorney familiar with the process. Once the legal separation petition is filed, the court must decide on several important questions, including whether the separation is truly needed. In most cases, the separation does not work to improve the relationship between the parties, and a divorce is ultimately granted after the designated separation period has expired.
How to Obtain a Legal Separation
Prior to commencing a dissolution action, a party may choose to file for an order of legal separation. However, there is no requirement in the law to seek a legal separation before filing for dissolution. In Washington state, once a couple has filed for legal separation and a decree of separation has been entered, they may not remarry until they have terminated the separation with a finalized divorce. If a person wishes to remarry following a legal separation, they must file for a dissolution. The paperwork related to dissolution may be similar to the paperwork required for separation, often including a petition to the court, a case information form, a summons, and probable an affidavit that the requirement for a mandatory parenting seminar has been completed.
When a petition for legal separation is filed in Washington state, additional documentation may be required, depending on the county where it is filed. In Chelan county, for example, a Cover Sheet and Case Information Form are needed, as well as a petition for legal separation, automatic temporary orders, and a motion for temporary orders when one party is seeking those. There is a fee associated with filing the necessary documents for legal separation. In addition to filing fees, an August 2016 article on Washington state legal separation notes that parties filing for legal separation may need to pay for service of process, transcripts for hearings, and other related fees.
Advantages of Separation
There are a number of factors that might lead people to opt for legal separation rather than divorce. While the most common reasons to enter into a legal separation are religious or culturally based, there can also be some real practical benefits to remaining married even if the marriage is not working out. Whether for personal or financial reasons, the process of legal separation offers a way to separate from one’s spouse without ending the marriage.
Continuing Health Insurance Coverage for the Spouse
One of the biggest advantages of legal separation is that the non-titled spouse can stay on the insured spouse’s health insurance plan. Even in today’s world of the Affordable Care Act (ACA), this can provide thousands of dollars in savings, especially if the spouse with the health care coverage has a disabling medical condition. The Affordable Care Act now prohibits pre-existing conditions from being considered when placing someone on an employer’s group health plan, but the cost of adding an additional family member to an individual’s health plan can be prohibitive when cost is not subsidized by an employer or other third-party. It is important to note that the non-titled spouse will be responsible for any share of the group plan cost that is required to be paid toward the premium by the non-titled spouse.
Employment Related Benefits
If the non-titled spouse is not eligible for COBRA coverage, the legal separation allows the spouse to remain on the spouse’s employer sponsored group health insurance and can also continue eligibility for other employee benefits such as employer stock programs. In addition, if the spouse receives retirement contributions from an employer, the employer contributions will continue for the period of separation. Because spousal rights under ERISA (the Employee Retirement Income Security Act) plans are so different than those under a domestic relations statute, especially here in Washington State, the rights upon divorce versus legal separation, may need to be extended in a domestic relations order to ensure that the rights of the parties under the plan will not be negatively impacted by the legal separation and the related state court proceedings of dissolution of marriage.
Custody of Children
Legal separation allows couples to arrange custody of their children, but also then remain married, odd as that sounds. Perhaps they do not want to go through the stress or expense of a divorce, and separation allows them to keep their arrangements in place while maintaining the status quo, but legally. Maybe one of them really doesn’t want a divorce, and they see the legal separation as a way to slow things down while they think about what they want from the marriage. Or maybe they just want to take a temporary break and the separation allows them to change their minds down the road.
Religious Reasons
In some religions, such as Catholicism, divorce is not an acceptable option and separation allows the couple to live separately as though they were divorced without technically committing what their religion may view as a sin. This is, of course, not an option for those in the Islamic faith, as the religion does not allow for separation that is not accompanied by divorce. In this circumstance, divorce and separation are viewed as the same.
Trial Separation
In some cases, people set out to get legal separation as a "trial run" of sorts of divorce. For example, one post separation may test their independence and ability to live alone through separation prior to permanent divorce. Others might find that separation allows them to see where their life goes without their spouse. It might also give them time to work through their problems without a permanent solution looming over them.
Tax Considerations
Under federal law, a legal separation does not allow the couple to file a joint tax return. Also, income earned during the separation is considered individual, unless the couple is in business together. However, the state court separate property laws will still apply and assets purchased together during the separation will still be viewed as shared and marital assets. It’s important to understand that just because you separate, does not mean you will get divorced. So, if the separation lasts for a year or longer, you may be prone to serious financial loss down the line should the separation now be viewed as a divorce.
Legal Separation Agreements
Legal separation Agreements are not required by Washington law, and when they do exist they may greatly differ in the amount of detail and complexity. All legal separation agreements in Washington State cover the disposition of the parties’ property, whether it be assets (whether or not acquired during the marriage), debts, spousal support, child custody, child support, medical insurance for the parties and children, payment of taxes, retirement plans and pension plans. However, the amounts of each item can be customized in each separation agreement. The most complex separation agreements involve a "trade-off" of property and spousal support.
For example, the parties may trade off $100,000 in marital assets in exchange for the other party paying $1,000 per month of spousal maintenance for a certain period of time. Parties also may trade off property for financial considerations but also may provide a phase-out in monthly spousal support over a period of years in exchange for providing the other party with a larger portion of the equity in the house (as the spouse staying in the home pays down the mortgage). In this respect, a legal separation agreement can be more lopsided than a divorce settlement.
Separation Vs. Divorce: The Distinctions
Legal separation and divorce share many similarities. In both cases, Washington State courts divide marital assets and debts and make orders regarding spousal support. Custody and child support issues are handled in a similar fashion as well. However, there are some key points of distinction.
Divorce is final, while legal separation is a temporary state that allows a couple to try living apart without the possibility of reconciliation. It is sort of a "try before you buy" situation that might allow a couple to see if life apart is what they both want. A legal separation is a little like having an "escape clause" – it allows all the marital event that would be covered in a divorce proceeding to take place under conditions that are more flexible to allow a couple to choose to reconcile or move towards divorce.
Legally, divorce and legal separation are handled in similar timeframe , These proceedings are filed in court 90 days after the date of service. Most of the time, the judge will sign the Decree of Legal Separation or Divorce that has been negotiated, and the date of the ruling, which becomes the date of separation. However, your Separation Agreement can include a provision that states that the judgment should be back-dated to the date of separation if both spouses agree to this.
One of the most important differences between divorce and legal separation in Washington State is that a legal separation does not affect your marital status. You are still married and since living apart does not qualify as an end to your marriage, neither spouse is free to marry someone else. A divorce, of course, finalizes the marriage. A divorce is a more permanent change to your domestic situation than a legal separation. If you believe that divorce is an inevitable outcome, divorce may be the better option.
Converting a Legal Separation to Divorce
In the case that you and your spouse have opted for legal separation, rather than divorce, you are not left to suffer in that limbo forever. Washington State allows you to convert a legal separation into a divorce if the circumstances change. For example, if you and your spouse decide that you would rather just finalize the process instead of keeping the separation indefinitely, you can petition to get a Divorce Decree to end the marriage and break the state of separation.
You’ll need to provide a reason for prior separation that applies. This may include:
— There has been a substantial change in the circumstances of either you or your spouse.
— The separation was granted without your consent, and without jurisdiction over your spouse.
— You have lived separately and apart, according to a separation decree that was entered into for at least six months.
— There is no reasonable expectation of reconciliation.
You must file a petition for divorce with the court that granted the separation, following the rules for dissolving a marriage. You will serve your spouse, and a hearing will be held where you will provide testimony from witnesses, as well as any documents related to property or children.
The conditions of the Decree of Legal Separation are still in effect until the court holds a hearing and issues the new Decree of Dissolution of Marriage. You should be prepared to wait up to three months or longer for a hearing date.
Common Legal Separation FAQs
Q. Can you get back together after a legal separation?
A. A legal separation in Washington State does not end the marriage, so the couple may choose to reconcile their differences. Under Washington law, however, if a couple reconciles and then decides to separate again, and one party pursues a divorce, then that party will have to wait approximately six months from the date of their signing the written separation agreement.
Q. Can you still use your spouse’s insurance after a legal separation?
A. Yes, in Washington a legal separation does not impact the ability of an individual to use his or her spouse’s insurance. However, once the court grants the legal separation, it will not order one spouse to provide insurance coverage to the other spouse as part of the court order. When the divorce is final, however, one spouse may be required to provide insurance coverage to the other.
Q. Is it better to get a legal separation or get divorced?
A. It really depends on the individual person. For some, a legal separation gives them the time they need to assess their situation and decide if they want a divorce. For others , a legal separation is just one step away from a divorce and does not serve any purpose.
Q. What if you get a legal separation but decide not to get divorced within a specified period of time?
A. When a couple separates, if they do not get a divorce within two years of the date of their separation, then the separation is deemed to be a divorce. Washington law therefore allows a couple to reconcile without starting a divorce proceeding.
Q. What happens to the financial obligations when people are legally separated?
A. When people are legally separated, there are specific financial obligations that come into play. For example, one spouse is responsible for his or her own debts that are not joint debts. Also, each spouse is entitled to receive his or her own income, though joint income may be considered and the judge may divide the income in making a decision regarding financial support. Washington law does not require people to make their spouse their beneficiary for their insurance, but fining the right kind of coverage may require additional thought and research. Joint debts are handled just like they are when people divorce.