Many couples in Oregon consider legal separation vs. divorce. For some spouses, they may not be able to legally file for divorce because they haven’t met the Oregon residency requirement. For other spouses, they may still be trying to save the marriage, or they are not yet ready to call it quits.
Why Consider Legal Separation?
- Personal reasons: Religious beliefs against divorce, or social reasons such as the embarrassment of a failed marriage or stigma that comes with a divorce.
- Legal reasons: You must live in Oregon for six months prior to filing for divorce. Therefore, if you have not lived in the state long-enough, you may need to consider legal separation.
- Financial reasons: Perhaps you can’t afford a divorce. You may need to remain married to retain health insurance or retirement benefits. In this situation, consult with an attorney before assuming the benefits will continue during a physical or legal separation.
- Lastly, you may have philosophical, psychological, or moral reasons for not filing for divorce. Maybe you’re not ready to thrown in the towel yet. You want to give the relationship every possible chance for success. Perhaps you just need a little space from your spouse, a cooling off period, and some couple’s counseling.
Legal Separation Process in Oregon
The process for legal separation in Oregon is nearly identical to that of a dissolution of marriage (the technical name for divorce in Oregon). Plans for child custody, child and spousal support, and property division (both assets and debts) can be put in place. Legal separation is best in situations where both parties agree to a separation. Because Oregon is a no-fault divorce state, either party who’d prefer a divorce to a legal separation can convert a legal separation proceeding into a divorce.
In order to have a legally-enforceable separation in Oregon, a petition must be filed with the local county court. A judgment must then be entered. The judgment of separation leaves an otherwise valid marriage in-tact, but allows the parties to live apart. The judgment may divide the parties’ property, determine who owes which debts, establish a parenting plan if there are children, and determine spousal and child support.
One major drawback of a legal separation is that the terms of a separation judgment are not finalized as they can be in a divorce, and on-going legal, financial, or personal problems can continue in legal separations. An attorney can help you determine whether a legal separation is appropriate in your situation.
If the parties want to convert the legal separation to a divorce, that can be done by motion within two years of the date following separation.
Legal Separation Agreements in Oregon
If you need court protection concerning your children, financial support, protection from your spouse’s debts, and property issues, a legal separation agreement can help. These detailed agreements should be drafted by a lawyer and filed with the court in the county in which one of the parties resides. They can be very specific, and provide peace of mind so that you and your spouse can live separate lives for a period of time.
“Does legal separation protect me financially?”
It can, if your separation agreement is detailed and legally-enforceable. However, it’s important to note that separation does not change your underlying status or obligations with regard to debts previously acquired. Meaning, if you and your spouse are jointly on a home loan, you ultimately both still have to pay that home loan. A legal separation agreement can require that only one spouse pay it, but if the spouse ordered to pay it fails to do so, the mortgage lender will still have the ability to enforce the debt against both spouses. Because of the separation agreement, the spouse who was required to pay may be held in contempt, owe attorney’s fees, and face other sanctions, but the legal separation agreement does not completely terminate the obligation of a debtor to ultimately pay a debt. This is why a detailed and legally enforceable separation agreement should not simply be scribbled on a piece of notebook paper or downloaded randomly off the Internet
“Can you date or remarry while legally separated?”
A surprising number of people ask this question. Some couples– while legally separated– want a trial period to possibly see other people. Other couples might be legally separated for a long period of time and naturally begin other relationships.
You can date. But you can’t remarry. Marrying another person while you’re still married is called “bigamy” and it’s actually a felony. If you intend to marry, you’ll first need a divorce.
Questions about Legal Separation
If you are considering legal separation vs. divorce, contact our office. We handle Oregon divorce and family law cases, and we can set up a consultation to discuss all of your options.