Although you may feel like the divorce process starts when you and your spouse make a conscious decision to separate, the legal divorce process doesn’t begin until one spouse files a petition for divorce with the local court. During a divorce, the couple typically negotiates how to resolve essential issues like child custody and visitation, child support, property division, and spousal support. If you and your spouse can’t agree, the judge will resolve any lingering problems for you using the state’s specific divorce laws. In the end, the court terminates the couple’s marriage and each spouse is free to remarry immediately.
Legal separation (judicial separation in Maine) is similar to divorce in that one spouse must file a petition with the court, and the couple decides how to resolve the same divorce-related issues. Each spouse is free to live a life independent of the other, meaning you can date, relocate, create contracts for personal property, or buy and sell real estate as an unmarried person.
However, the fundamental difference between divorce and separation is that at the end of a legal separation process, the couple is still legally married. If either spouse would like to remarry after the separation, that spouse must ask the court to convert the case into a formal divorce. (19-A M.R.S.A. § 851.)
It’s no secret that relationships are deeply personal and at times, can be complicated. Contrary to popular belief, not all couples who face marital troubles run to the courthouse with divorce paperwork in hand. Most couples try to remedy their issues by participating in counseling, talking with family and friends, and working out their problems together.
Not every relationship is salvageable, but divorce isn’t always the answer either. If you’re not confident that your marriage is over, judicial separation might be a better (and less permanent) option than divorce. For other couples, a separation might be necessary to solve the relationship issues, and, depending on the specific health insurance policy, it can preserve significant medical insurance coverage that would automatically terminate with a divorce.
Although there’s no bright line rule for how to decide, many couples choose judicial separation instead of divorce for any of the following reasons:
In Maine, the court refers to legal separations as judicial separations. You can file for a judicial separation if you’ve lived apart from your spouse continuously for at least 60 days.
If you and your spouse agree, you can file a motion together, or either spouse can request separation alone. The court may order you to participate in mediation, which is where a trained, neutral third-party facilitates a conversation between you and your spouse to negotiate reconciliation, or if that’s not possible, to decide the terms of your separation agreement.
Like divorce, in a judicial separation, the court can order spousal support, allocate parental rights and responsibilities, order child support, and divide marital property and debt. (19-A M.R.S.A. § 851.)
You’ll need to prove that you meet the state’s residency requirement, which means you meet any of the following:
To be successful in your separation petition, you’ll need to provide the court with a legal reason—or, grounds—for your request. Maine is a no-fault divorce state, meaning you only need to allege that you’ve experienced irreconcilable differences to file for divorce or judicial separation. The no-fault process is attractive to couples who wish to keep the process as simple as possible. While you can file a fault-based divorce or separation in Maine, attaching fault can create a stressful and time-consuming case for you. (19-A.M.R.S.A. §902.)
Judicial separation isn’t meant to be permanent, which means either party can file for divorce at any time. On a happier note, if you and your spouse work through your differences and decide to reconcile, you can ask the court to terminate your judicial separation.
A trial separation is a way for couples to experience living separate and apart without any legal recourse and without involving the court. Couples often use trial separations to test the waters for divorce or legal separation. Typically, both parties will negotiate the terms of the separation. In the end, the couple can choose to reconcile, file for a judicial separation, or proceed with a divorce.
Regardless of the type of legal action you pursue, if you have children and you can’t negotiate custody and support with your spouse, the court may request an investigation to determine the most appropriate parenting plan and support arrangements for the family. The court’s primary concern is what’s best for the children, and the judge will use a series of factors to evaluate whether one or both parents should have custody of and visitation with the children. (19-A.M.R.S.A. § 905.)
A separation agreement is a legally-binding contract between both spouses, signed by the judge. The agreement isn’t optional and must contain the relevant information for your separation, including property and debt division, child custody and visitation, child support, and spousal support. It’s important to understand that although separation agreements are court-orders, the document is only valid while you and your spouse are legally separated, meaning if either spouse files for a formal divorce, your separation agreement terminates when the judge approves your divorce. (Wanner v. Wanner, 12 A.3d 58 (2011.))