PUBLISHERS UPDATE: Here is one of my favorites posts about legal separation from back on February 8th, 2020! The advice rings as true now as it did then. We have a ton of interesting articles in our archives of the Ohio Family Law Blog. Use our Search tool and enjoy a few oldie but goodies!
Everything You Need To Know About Legal Separation In Ohio [But Were Afraid To Ask!]
Ending a relationship can be frustrating. Likewise, understanding the process involved can be confusing. In Ohio, there are only three ways legally to terminate a marriage: divorce, dissolution, and annulment. While those three ways are the only methods to terminate a marriage legally, a couple can also seek what is known as a “legal separation.”
What is a legal separation?
Black’s Law Dictionary defines separation as “an arrangement whereby a husband and wife live apart from each other while remaining married, either by mutual consent (often in a written agreement) or by judicial decree.” A legal separation involves a court order where the spouses remain married but live separately. The court order allows the court to issue orders concerning division of property, spousal support, and visitation and custody when there are minor children involved. With a legal separation, unlike a divorce or dissolution, the marriage is still intact.
How do I get one?
A common misunderstanding is that individuals can simply declare they are separated and do not need to file anything in court when they wish to pursue a one. Though understandable, this is not the case.
In Ohio, the grounds for filing are governed by Ohio Revised Code § 3105.17. To initiate a legal separation in Ohio, either party to the marriage must file a complaint. The complaint must allege one or more of ten grounds for why the separation should occur, which can include, but is not limited to, adultery, incompatibility, extreme cruelty, and/or habitual drunkenness.
However, the filing of a complaint for legal separation by one party does not bar the other party from filing a complaint or counterclaim for, and potentially obtaining, a divorce or annulment.
What’s the difference?
The main difference between a legal separation and a divorce is the effect on the marriage. A legal separation leaves the marriage intact, while a divorce ends the marriage. Additionally, the couple must reside in Ohio for at least 6 months before they can file for divorce or dissolution. This residency requirement is not required to file. Another difference is the “un-do” process. With a legal separation, the couple can do a reversal, but generally with a divorce, the final divorce decree is what it says: final.
Despite these key differences, there are several similarities. For example, the Ohio Rules of Civil Procedure apply in both actions for divorce and legal separation. Additionally, issues addressed during a legal separation and a divorce proceeding are relatively similar. The couple takes very similar action to if they were to file for a divorce when they file for a legal separation.
When would you want a legal separation?
It is important to note that, in the eyes of the law, the marriage is not legally terminated. As such, a legal separation can end up costing you more time and money if you later decide to file for divorce.
For example, since the marriage is still intact, a legal separation does not allow a spouse to remarry because the previous marriage has not ended. A legal separation would not be ideal for a couple who know they will want to remarry because there is little to no chance of reconciliation with their current spouse.
Below is a list of examples of when a separation may be preferable:
- Spouses who believe there is a chance for reconciliation but wish to live apart from each other at the moment. Why is it ideal? The “un-do” process for a legal separation is easier!
- For spouses with personal or religious beliefs that may cause them to want to keep the marriage intact.
- For spouses who want to live separate and apart from each other, but also want an enforceable court order to protect their rights and define their obligations.
- Unlike with a divorce, spouses may still be entitled to certain benefits.
- For spouses who want to keep the marriage intact while they figure out what they really want.
- If spouses are not yet eligible to file for a divorce, but still want an enforceable court order. What is an example of not being eligible to file for divorce? If the 6-month residency requirement in Ohio is not met yet!
Deciding what is best for you and your family are hard decisions to make. Fully discussing your options with an experienced family law attorney will help you determine what is best for your situation. The attorneys at Holzfaster, Cecil, McKnight & Mues are dedicated to helping each client determine what is the “best” decision for him or her! Contact our office at (937) 293-2141 to schedule an appointment to meet with one of our dedicated divorce attorneys today!
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Attorney Robert “Chip” Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm’s website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.
