Legal Separation vs. Divorce: What to Choose in Washington

Last week I spoke to a worried client who isn’t sure what she will do about health insurance after divorce. She wanted to know if legal separation would be better than divorce for her.

So is legal separation better than divorce in some cases? Depending on your circumstances, legal separation can be a better option than divorce. For example, legal separation can help you keep health insurance, military benefits & immigration status. However, it is not easy to undo and often overly complicates the process of splitting up.

Keep reading if you’d like to learn more about the legal separation process, how it differs from divorce, and how to either undo it or convert it to a divorce after the legal separation is finalized.

Topics

• What is a legal separation?
• Reasons to choose legal separation over divorce
• Drawbacks to legal separation
• Legal separation process
• Converting a legal separation into divorce
• Undoing a legal separation

What is a Legal Separation?

In Washington, a legal separation is a decree by a county superior court, which dictates the rights and duties of spouses that are still married, but living separate.

Legal separations are uncommon, but can be beneficial in some cases. The process is similar to divorce in that spouses still divide property, draft parenting plans, set child support and decide on spousal maintenance. Also, many of the forms are identical to the documents used in a divorce.

Reasons to Choose Legal Separation Over Divorce

Retain Financial Benefits

The most common reason I see people choose legal separation is to allow one spouse to still receive health benefits. Health insurance can be a daunting expense to face after a divorce, especially for older individuals with higher premiums. Depending on the insurance, you may be able to stay covered under your spouse’s policy if you choose to legally separate instead of divorce.

Other common financial benefits include military benefits, social security benefits and tax benefits. Typically, military and federal benefits like social security require spouses to be legally married for a certain number of years in order to be eligible. Couples might choose to legally separate until those minimum time requirements are met. Tax benefits are all situational, but in many cases there are significant tax savings available to a married couple.

Immigration status

Unlike divorce, legal separation alone should not impact your immigration status. You can still successfully petition to become a permanent resident. Just keep in mind that your marriage may be scrutinized more heavily.

Also, if you have unconditional resident status based on a marriage you will not lose that status through legal separation. However, a legal separation may increase the time it takes to apply for U.S. citizenship.

Any delay in the naturalization process is usually an important issue because the spouse who is already a U.S citizen is financially obligated to support the other. The financial obligation comes from the Affidavit of Support, which is signed by the U.S. spouse. The affidavit makes them financially responsible for support of their foreign spouse until naturalization.

Because of this obligation, it is in the sponsor’s best interest for their spouse to become a citizen as soon as possible. The standard wait time to apply for U.S. citizenship is five years, but there is an expedited option available if a couple lived together in a marital union for at least three years.

If you’re considering a legal separation and naturalization is an issue, take into account whether or not three years have passed, so you may file for expedited citizenship. If not you may want to delay the legal separation until it has. Look for a good immigration attorney to help you decide what is best.

Moral reasons

Whether for religious or moral reasons, some people don’t believe in divorce. At the same time there can be very serious reasons that a person would need to move on from a relationship. For example, there could be domestic violence at home or perhaps a spouse has a gambling addiction and is at risk to incur enormous debt. In these cases, legal separation is an alternative to divorce, which puts legal protections in place and allows a person to move on from a relationship.

Social Acceptance

Divorce carries a stigma that can create problems for people in certain communities. A person might worry that they won’t be accepted by their peers if they’ve filed for divorce. Alternatively, if they file for legal separation they may find it easier being accepted in their community afterwards.

Time apart as a first step towards divorce

Divorce is a major change for anyone and legal separation can be used as a crutch to cope with that change. Sometimes people want to stay connected even though they live separate lives. Others just want to deny the option to remarry and need time legally separated before converting the separation to a divorce.

No waiting period

At a minimum, you must to wait 90 days to finalize a divorce after it’s filed with the court. This waiting period applies to all divorces, agreed or contested, but there is no waiting period for legal separations. Most courts will sign off on the legal separation order as soon as it is presented.

However, this is county dependent. Some Washington county courts treat legal separation and divorce the same way and still impose the 90-day waiting period. You can call your local clerk’s office to see if they enforce a waiting period for legal separations.

Drawbacks to Legal Separation

Not easily reversed

You can’t take it back. Many people are under the impression that they can simply reverse a legal separation in Washington if they reconcile, but that is not the case.

Once the court approves a legal separation it is a final order and the chances of reversing it later are low. In order to remove the legal separation from the record, the couple will most likely need to convert it into a divorce and then remarry.

If you do reconcile, it is usually in your best interest to take steps to remarry. Otherwise, your legal status is in limbo. For example, property and debt you acquire will be treated as if you are legally separated and thus be considered separate. This can cause a mess in the wrong circumstances.

Can’t remarry

A legal separation keeps the married intact, so neither party can remarry. The only way a spouse can remarry is to convert the legal separation into a divorce. Conversion is an easy process, but there is a time restriction. The legal separation must be in place for six months before it can be changed.

Benefits aren’t always available

If you’re interested in legal separation, specifically for a financial benefit like health insurance, make sure to read the fine print. While some benefits still transfer to a legally separated spouse, stricter policies will end. Be sure to confirm eligibility after legal separation. It would be a shock to choose legal separation for health insurance only to find that you are no longer covered.

Decision-making and inheritance risks

Unlike divorcees, legally separated spouses still retain the right to inherit from each other and the right to make medical or financial decisions for the other in the event their spouse is unable to do so.

If you choose legal separation it’s smart to draft a will and a durable power of attorney for health and financial decisions. These documents will trump your spouse’s right to make major decisions for you and to inherit your assets by default.

While you hope that your spouse has your best interests in mind, there is a risk that they won’t, especially if they would still inherit from you. While this is an extreme example, an attorney told me a story of a legally separated spouse declining life support for her ex after a car accident, because she would inherit his estate.

Legal Separation Process

Step 1:

Discuss the terms of the legal separation with your spouse. Just like divorce, legal separations can be contested and go to trial. If you can iron out the major issues before filing for legal separation you will save yourself a lot of time and money.

Top five topics to discuss: 1) asset and debt division, 2) child & spousal support, 3) parenting plans, 4) reasons you want a legal separation instead of divorce, and 5) length of time before either spouse can convert the separation into a divorce.

Step 2:

Prepare the legal separation forms. You can do this on your own, hire an attorney, or prepare them. 

Step 3:

Get an expert’s opinion. If you haven’t hired an attorney already, now is the time. Legal separations are uncommon for a reason, so working with a lawyer can help you ensure it is the best choice. An attorney will also give you peace of mind that the legal separation is correctly filed and built for the long term. You do not want to end up back in court to resolve something you missed.

Step 4:

File the case and send your spouse the required notice. Depending on if you filed in person or by mail, you’ll have different requirements. Make sure to comply with all the deadlines and directions. If your spouse signed the petition before filing, you may be able to finalize the separation the same day.

Step 5:

Attend any required classes and court dates. Different counties have varying requirements, but it’s common for pro-se filers to attend an introduction to family law class, as well as a parenting class if there are children involved.

Step 6:

Finalize the case. If the legal separation is contested you’ll have plenty of chances to resolve the case. Most counties require parties to attempt alternative dispute resolution before trial. You may choose mediation or arbitration.

If do come to an agreement you can schedule a hearing in Ex Parte court to present final orders and have a judge approve the legal separation order. If trial is your only option, find an attorney you trust and let the court make a fair judgment.

Converting a Legal Separation into Divorce

Six months after a legal separation is entered either party can ask to convert it to a divorce. The other spouse cannot object, unless you both agreed to postpone the conversion past six months in the original legal separation decree.

The conversion is a simple process because you won’t alter any part of the legal separation decree. This means you won’t present any facts or arguments to change things like spousal support or parenting plans.

The court simply converts the legal separation into a divorce. The same rules and restrictions in place will still apply, except the marriage is dissolved.

Primary forms to file for conversion:

• Case Cover Sheet
• Motion to Convert Legal Separation Order to Final Divorce Order
• Confidential Information Form
• Proof of Personal Service
• Notice of Hearing
• Order Converting Legal Separation Order To Final Divorce Order

To complete the conversion, prepare the above paperwork and schedule a court date in Ex Parte court. Make sure to give your spouse advance notice, 14 days in King County. Typically there is a filing fee for this process of about $280.

Undoing a Legal Separation

This is much more complicated than converting a legal separation into a divorce. Speak with an attorney in order to make the change because there are varying opinions on how best to undo a legal separation in Washington.

Some attorneys will tell you that it is impossible to undo a legal separation and that your best option is to convert the legal separation into a divorce and then remarry.

Another more creative option is to try vacating the original legal separation order. In a nutshell, you would file a motion to reopen the case and afterwards file a motion to dismiss.

The problem with dismissing the original legal separation is that people outside the marriage may rely on the legal separation decree. By essentially wiping it from the record, these third parties are prejudiced, which can open up a legal can of worms.

Expect a judge to be hesitant to approve a motion to vacate. Therefore, the chances of a reversal succeeding are small, but it has been done.

Overall, the most practical and cost effective solution is to file the forms necessary to convert the separation into a divorce and then remarry.

Conclusion

I hope you have a better understanding of legal separation and whether it is an option for you. If you’d like help with the process, Truce Law offers both an online legal separation option as well as the option to hire our attorneys. As I’ve said above the process is almost identical to divorce, so many of our resources about the divorce process will also apply to your legal separation. Please call me at 206.409.4086 or send us a message if you have questions.

Cheers,
Justin