What’s the Difference Between a Legal Separation and Divorce in Washington State?– Posted by Miriam R. Gordon
Seattle elementary school teacher, Mary Kay Letourneau, infamous for her relationship with her 12-year-old sixth grade student back in 1996, recently made national headlines again. After serving multiple jail terms, Letourneau and her student, Vili Fualaau ultimately married in 2005. TMZ recently reported that Letourneau and Fualaau are legally separating. This begs the question, what exactly is a “legal separation” and how does it differ from a divorce?
In Washington State there are two types of petitions that can be filed to formalize a separation between married persons: a Petition for Legal Separation or a Petition for Divorce, often referred to as a “dissolution” in Washington.
In many regards, the two filings are the same. In both cases, the court is authorized to divide the parties’ property (assets and liabilities), order spousal support (“spousal maintenance”), and enter a parenting plan and child support if there are children involved. However, at the end of the case, the parties will either be divorced (meaning they are no longer married) or legally separated (meaning the parties are still married but can in all ways, except a notable few discussed below, conduct themselves as an unmarried person). Many people have misconceptions about “legal separation” and mistakenly believe that this is a required step in the divorce process. This is not true. Parties do not need to first obtain a legal separation order before they obtain a final divorce order.
So why proceed with a legal separation action? Some spouses choose to commence a legal separation proceeding rather than a divorce to take advantage of certain benefits, such as tax considerations, insurance issues, or because of religious reasons. If you are considering a legal separation for a financial reason, it is important to speak with a financial expert to ensure you will still be able to obtain or retain those benefits through a legal separation. For example, historically, parties often choose to proceed with a legal separation instead of a divorce so that one spouse could remain on the other spouse’s employer-provided health insurance. However, that loophole has significantly closed as many employers consider a legal separation a disqualifying event just as they consider a divorce.
At the end of a legal separation, the parties receive an order stating they are legally separated, whereas at the end of a divorce, the parties receive an order dissolving (ending) the marriage. This means that although parties who are legally separated will no longer be accumulating community property or liabilities, at the end of the day, they are still technically married. Thus, the main distinction between a legal separation and a divorce is that if you obtain only a legal separation, neither party can get re-married until the legal separation is converted to a dissolution.
If you decide to obtain a legal separation and later decide you would like a divorce, the court can convert the legal separation to a dissolution at any time after six months have passed from the time you obtained a legal separation. If the parties, or one party, decide prior to finalizing the legal separation that they would like a dissolution rather than a legal separation, the parties together, or one party separately, can request the court enter a final divorce order rather than legal separation order. Since there are not many advantages to a legal separation, they are much less common than a divorce.
If you are considering either a legal separation or a divorce, feel free to contact Miriam Gordon or any of the family law attorneys at Lasher Holzapfel Sperry & Ebberson to set up an appointment.