If you’ve reached a breaking point in your marriage, it’s possible that you’re considering divorce. The divorce process begins when one spouse files a petition for divorce with the local court. Contrary to popular belief, most divorces settle before they reach the stage that involves nasty court-room fights and mud-slinging. Couples often negotiate the terms of custody, child support, and property division put it into a written agreement, and ask the judge to sign it. Once the court grants the request for a divorce, both spouses are free to relocate, remarry, and move forward in life.
Legal separation is like divorce in that the process begins with one spouse filing a motion (request) with the court, the couple decides the same legal issues, and creates an agreement. In both legal processes, the court decides all issues if there are disputes over the terms of the divorce or separation.
The critical difference between a legal separation and divorce is that at the end of the separation process, the couple is still married, even though they live entirely separate lives.
No one can tell you what direction you should choose when it comes to your marriage. Some couples pursue a separation because one spouse needs to remain on the other’s health insurance. Others may continue to stay married because of the valuable tax benefits afforded to married couples.
Some other typical reasons for deciding on separation rather than divorce may include:
Legal separation in Arkansas has the potential to be complicated because the state recognizes two forms of marriage: covenant marriage and traditional marriage, and the requirements for separation depend on the legal definition of your relationship.
Arkansas is one of only a few states that recognizes covenant marriages, which a couple enters into with the knowledge that it is a lifelong commitment and that it’s harder to divorce or separate later. To file for separation from this type of marriage, one or both spouses must live in the state, and you must present a legal reason—or, ground—for your request. Additionally, the law requires spouses to obtain specialized counseling before either party can file for separation.
An example of the acceptable grounds for separation from a covenant marriage includes a felony conviction, physical abuse, or sexual abuse. You can also request a separation if you can demonstrate that you and your spouse have lived separate and apart, without reconciliation, for at least two years.
If you’re involved in a standard marriage (not covenant), and you would like a legal separation, you can file a petition for separation if you can prove that you and your spouse have lived separate and apart for at least 18 months.
With both types of marriage, you’ll need to work out the details of your separation with your spouse before the court can approve your request. Most couples negotiate the terms, including child custody, visitation, child support, spousal support, and property division, and present the agreement to the judge. If the court believes the arrangement is fair to both parties, the judge will approve it and grant the separation.
In addition to the above requirements, with each type of marriage, at least one spouse must meet the state’s residency requirement of 60 days living in Arkansas before filing, and you must wait at least 30 days before the court can take any action on your request.
Regardless of the type of marriage, if you allege that you’ve lived “separate and apart” from your spouse, you’ll need to make sure you don’t ignore your state’s requirements.
“Living separate and apart” typically means that you don’t share a home and there’s no cohabitation (sexual relations). In limited circumstances, courts have approved a couple’s request to remain the same home if the couple lives in different bedrooms.
If you cohabitate or otherwise break the court rules, you risk the judge denying your application for separation and restarting the clock on living separate and apart.
A trial separation is a way for couples to test the waters on a real separation or divorce. Couples will typically live apart for a prescribed period which allows them to reassess the direction of their marriage, without court intervention. In many cases, the spouses will verbally agree how to handle custody and support matters during the separation. At the end of the trial period, the couple will either reconcile, pursue a legal separation, or divorce.
A separation agreement is a legally-binding document that lists the terms for the separation. Although the court doesn’t require this agreement during a trial separation, for any couple that wants the court’s help, it’s not optional.
The agreement should contain the relevant information that addresses the critical terms of the separation, for example, you should be clear on:
The court will enforce the terms of the agreement until the couple reconciles, files for divorce, or otherwise asks a judge to modify the arrangement.
While the law doesn’t require either spouse to hire a lawyers, it’s always best to discuss the facts of your case with an experienced family law attorney familiar with your state’s laws before you file an application with the court.