Relationships often go through ups and downs, but when your marriage is stuck at a low point, you might be wondering whether a divorce is in your best interest. Before you decide to end your marriage permanently, you might want to consider the less severe option of separation.
When it's obvious to both spouses that a marriage has reached its end, one spouse will usually file for divorce. During this process, the couple (or the court) will decide issues like child custody and visitation, spousal and child support, and property division. At the end of the court process, the judge permanently dissolves the marriage, and each spouse becomes single and is free to remarry.
The key difference between divorce and legal separation is that legally separated couples are still married to each other, even if they live apart and carry on with their own lives. The two legal procedures are similar in that both address the same legal issues, but with separation, if either spouse wants to remarry, that spouse will need to ask the court to take an additional step and convert the case to divorce later.
There’s no bright-line reason for couples to request a separation rather than a divorce. Most parties weigh the options and repercussions of each procedure and then decide what’s best for the family. Some couples might choose to separate rather than divorce for any of the following reasons:
Like many states, Alaska allows couples to request a legal separation instead of divorce. Either spouse must first file a petition (request) with the court asking for intervention. The petition should include pertinent information like each spouses’ name, address, and dates for the marriage and separation. Additionally, at least one spouse must be a resident of the state at the time you submit the request.
Like divorce, you’ll need to provide a reason—or, legal ground—for your request, which you can do by telling the court that you and your spouse are incompatible and that you want to separate, but stay legally married to protect religious, social, legal, or financial interests.
The couple can agree to the terms of the separation, or you can ask the judge to decide. The law is clear that before a judge can grant your request for separation, you must address how you’ll handle custody and visitation, child support, alimony, and property division.
Legal separation isn’t necessarily permanent, meaning that at any time after the separation, either spouse can request a divorce.
The law in Alaska restricts each couple to one legal separation per marriage. If you aren’t confident that a separation is appropriate, you might want to consider a trial separation, which is where you temporarily live apart to reassess your relationship, before involving the court.
During a trial separation, the spouses can verbally agree how to handle custody, support, and property division, which might be appropriate for couples with strong communication skills and a short-term separation. If you and your spouse aren’t on speaking terms or you would like the trial separation to last for a more extended period, you should consider putting your intentions in writing.
At the end of the trial period, you can decide to reconcile, move forward with the legal separation, or file for divorce.
If your spouse is on the fence about a trial separation, you might not want to push the subject by asking for a written agreement. With that said, it’s important to understand that without a contract, it’s almost impossible for the court to know what your intentions were at the start of the separation. No law requires spouses to create a written agreement, but without it, any future disputes may become complicated.
If you pursue a true legal separation, with court intervention, you must have a written separation agreement (legally binding contract) before the judge will approve your request. Couples can negotiate the terms or ask the court for help. Every separation agreement must resolve the following issues:
In divorce, every state evaluates custody and visitation based on the child’s best interest. If parents can’t negotiate custody terms, the judge will usually assess a specific set of factors before creating an appropriate custody plan.
In most cases, both parents have a legal right to spend time with their children. In situations where the parents agree to a trial separation, but don’t execute a written agreement, custody and parenting time can become extremely difficult, especially if one parent violates the verbal agreement. It’s best to put your custody intentions into writing to prevent costly and emotional custody trials down the road.
In a court-ordered legal separation, the judge will decide custody based on the same factors in divorce. The court will specify in the judgment whether the agreement is temporary or permanent. If either parent violates the agreement or wants to modify it, that parent will need to go back to court.
If you’re considering a trial or long-term legal separation, you should discuss your case with an experienced attorney before you agree to or sign anything. Separation agreements are legally binding, and if you make an error creating it, you will need to ask the court to change it later, which can be challenging and expensive.