Separations come in many forms—some are short-term while others are years long. Spouses may separate informally and make their own agreements. However, for legal reasons and to protect marital assets, some couples may want to obtain an official, legal separation.
A legal separation is a formalized separation recognized by the court. Missouri allows legal separations, and in fact, encourages couples to seek a legal separation before filing for divorce. Specifically, Missouri law states that legal separations are designed to allow couples to gain perspective on their problems, thus encouraging a couple's efforts to resolve their differences. A couple may seek a legal separation by filing a petition with the court. A judge will hold a hearing and issue a legal separation order if appropriate.
Legal separations are final orders, but they are not a permanent solution. They do not annul or dissolve a marriage. If a judge issues a legal separation order, you and your spouse are restrained from selling off assets, incurring major debts or getting remarried. A separation order may cover similar issues that would be included in a decree of divorce, including alimony awards, property division, and child custody. However, you'll need to convert your separation order into a divorce order to finalize your case.
Missouri law allows a judge to convert a separation order into a final divorce decree if at least 90 days have lapsed since the separation order was entered. Alternatively, either spouse may file a motion to set aside the separation order.
Once you've obtained a divorce, you are free to remarry and otherwise get a fresh start on life. In some cases, you could be liable for your spouse's debts incurred during a separation period. Also, assets acquired and income earned during a separation period are still considered part of the marital estate. When you're divorced, your income is solely yours and your ex-spouse cannot claim an interest in your earnings or property following a divorce.
Many of the same factors at issue in a divorce are relevant to a judge's findings in a legal separation case. When either spouse files for a legal separation, a judge's job is to create property and custody orders that fairly divide assets and parenting time between the parties.
Specifically, with regard to property division, a judge will consider each spouse's assets, earning potential, job history, education level, separate assets and debts, and any other relevant factor.
A child's best interests are paramount to any custody decision. For example, a judge may evaluate the following factors when deciding custody as part of a legal separation:
The elements of a separation order constitute judicial findings and often form the basis for future divorce orders. It's rare for family circumstances to change drastically enough during a separation period to justify a change to a judge's orders. More often, the terms set forth in your separation order will mirror the terms contained in a divorce decree.
In one Missouri case, a wife filed for a legal separation from her husband on the grounds that their marriage was irretrievably broken. As part of the separation, the judge issued separation orders dividing the couple's property. Following the expiration of the 90-day waiting period, the husband filed a motion asking the court to convert the separation order into a decree of divorce. The wife objected, claiming that she wanted to reconcile with her husband and stated that the trial court made no findings that the marriage was irretrievably broken. However, the husband had his way and his divorce was granted with the terms of the separation order governing the couple's divorce.
A legal separation can save you and your spouse time and money. Missouri makes the legal process of converting a separation order into an official decree extremely simple. Additionally, a legal separation period offers couples time to sort out their differences and figure out what they truly want in a divorce. For other couples, a separation period gives couples on the brink of divorce the opportunity to reconcile.
This "cooling off" period is crucial for many divorcing spouses. Many spouses take a more reasonable approach to divorce when given a chance to evaluate priorities and consider whether divorce is what they really want. For other couples, a separation period may give one spouse time to find a job and get back on his or her feet financially. A legal separation rarely hurts couples financially and usually leaves you better prepared if you ultimately decide to divorce.