Understanding Separation
When a couple makes the decision to live apart, they are considered to be separated. Typically, this means that each partner has chosen to reside in separate homes. Simply living in separate bedrooms within the same house does not count as separation. It’s important to note that separation can either be informal or legal. Informal separations have no formal requirements and can last anywhere from a few weeks to several years. On the other hand, a legal separation is recognized by the court and may have implications for future court orders. Although there are benefits to both types of separation, formal separation offers certain advantages.
The Basics of Legal Separation
In Oklahoma, spouses can file for a legal separation in the county where either spouse currently resides. Unlike a divorce, there is no residency period required to initiate a separation action. The spouse seeking separation must file a petition and affidavit with the court. It’s worth mentioning that no specific grounds or reasons for the separation need to be provided. Similar to a no-fault divorce, a judge may grant a legal separation based on irreconcilable differences. As part of the separation process, a judge will issue separation orders. After a petition for legal separation has been filed, either spouse can request temporary orders.
Addressing Issues in a Separation Order
When a judge issues a separation order, it may cover various issues, including:
- Child support, custody, or visitation
- Spousal maintenance (alimony)
- Each spouse’s responsibility for specific debts
- Each spouse’s right to possess marital property
- Either spouse’s entitlement to payment of attorney’s fees by the other spouse
- Any other necessary relief
To determine an appropriate custody or property award, a judge will schedule a hearing to review evidence and testimony. This gives both spouses the opportunity to present their case and provide supporting evidence. Alternatively, couples can work out their own agreement. In some cases, mediators can assist in reaching agreements and even help draft a separation agreement. However, it’s important to note that mediators cannot offer legal advice. If an agreement is reached, it will be submitted to a judge for review. The judge may hold a brief hearing to ensure that the agreement is fair, meets statutory requirements, and serves the best interests of any involved children.
Advantages of Separation Over Divorce
A separation period allows couples to reflect on the reasons behind the breakdown of their marriage and potentially reconcile. Additionally, during separation, couples can address financial matters such as monthly expenses, property division, and child custody arrangements. For couples who choose to divorce after separation, this time spent working out agreements can make the divorce process smoother and more manageable. Moreover, separation may present financial benefits, as a needy spouse can continue to receive insurance benefits from the other spouse, which is not possible after the finalization of a divorce. Separation can also be a viable option for couples with religious reasons for avoiding divorce.
However, it’s important to remember that separation is not a final resolution, and your life will be in a state of limbo until the divorce is finalized. During separation, you are not free to remarry, liquidate your retirement savings, sell property, or move to a different state. If you’re truly ready to move forward with your life, divorce is the only real option.
Impact of Separation Orders on Divorce
When transitioning from separation to divorce, a judge will consider the same factors that were relevant during the separation period. For example, in determining whether spousal support is appropriate, a judge will assess each spouse’s earning potential, work history, financial needs, and ability to pay support. Unless there have been significant changes in circumstances between separation and divorce, earlier orders are unlikely to be altered.
This principle also holds true for child custody. The best interests of the child are the primary consideration. A judge will evaluate factors such as each parent’s relationship with the child, the child’s needs, the ability of each parent to meet those needs, the child’s adjustment to school and community, the child’s relationship with siblings and extended family, and, if applicable, the child’s preference. These are the same factors that are taken into account when determining child custody during a divorce. Moreover, if a child thrived during the separation period, a judge is more likely to maintain the existing custody arrangement during the divorce.
If you have any questions, it’s advisable to consult an experienced family law attorney in your area.
