Legal Separation in Ohio FAQs

What's the Difference Between a Legal Separation and a Divorce?

Although a legal separation often deals with the issues you'd find in a divorce case, when you conclude the separation process . . . you're still married. Divorce, on the other hand, officially terminates the marriage.

What's Considered a Legal Separation in Ohio?

Unlike many other states, Ohio has a law that specifically provides for a court action to obtain a legal separation. This is similar to filing a complaint (petition) for divorce, and you need to have appropriate grounds (reasons). You don't have to be living separate and apart to initiate the lawsuit.

Some of the grounds for filing an action for legal separation from your spouse are:

• the spouse was willfully absent from the marriage for one year
• adultery
• extreme cruelty
• habitual drunkenness
• the spouse is incarcerated at the time the complaint is filed
• you and your spouse have lived separate and apart for one year without interruption, and without cohabitation (sexual relations), and
• incompatibility.

The lawsuit will address the issues found in a standard divorce, like custody and visitation (parenting time), child support, alimony (spousal support), and dividing your property.

The downside of filing a lawsuit for separation is that, generally speaking, court cases are cumbersome affairs. They tend to drag on, because you're subject to the court's timetables and procedural rules. And when you're at court, you could be waiting hours for a judge to be available for a hearing or conference that might take only minutes to complete. Additionally, the more time you spend in court, the higher your attorneys' fees.

There's an alternative to filing a suit for legal separation, and it's the path of choice for many spouses seeking a legally viable separation in Ohio. It involves the negotiation and signing of a Separation Agreement (sometimes called a Property Settlement Agreement).

What Does a Separation Agreement Entail?

Basically, a separation agreement is a written contract between spouses. Once it's legally signed, the spouses must abide by its terms. The agreement's purpose is to resolve the issues that would arise in a divorce case, such as the ones referenced in the previous section.

Separation agreements are popular because you can enter into them without involving the courts. You and your spouse control the schedule for moving toward your goal. And because you've negotiated the terms of the agreement between yourselves (perhaps with the help of attorneys or a trained mediator), you've controlled your own fate, rather than having a judge decide it for you.

Another positive aspect of entering into a separation agreement is that if one spouse violates the agreement, the other can go to court to enforce it, because it's a binding contract.

At some point, you and your spouse may decide to end the marriage. Ohio law provides an expedited way to accomplish this if you have a separation agreement. Both spouses sign and file with the court what's known as a "petition for dissolution" (a request to dissolve the marriage). Your separation agreement gets incorporated into that petition. Assuming the agreement covers all the issues the statute requires, this process usually facilitates ending your marriage more quickly than if you followed the normal divorce route.

Why Choose Legal Separation Over Divorce?

The answer to that question depends on your circumstances. Sometimes a couple isn't psychologically ready to officially end their marriage. In other cases, economic factors control the decision. Perhaps it's important to you and your spouse that you be allowed to file joint tax returns. Or maybe one of you wants to be able to collect social security based on your spouse's future benefits—in order to be eligible for that, you have to be married for 10 years.

Another reason is the desire to continue receiving medical coverage through a spouse's employer. But that door appears to be closing in today's health care environment, so you'll need to determine in advance if the option is available to you.

Couples sometimes choose separation because divorce conflicts with religious beliefs. Or, although you don't see this nearly as much now as in the past, spouses may feel there's a social stain attached to divorce.

Finally, a couple may opt for separation for the sake of their children, believing it would be less traumatic for them. Whether this reasoning is valid depends on each family's particular situation. But before making the decision, be mindful of potential pitfalls.

For example, separating might give the children the impression there's hope for a reconciliation. If you don't believe there's any way to salvage the marriage now or in the future, delaying the inevitable may do more harm than good. Before choosing which avenue to pursue, consider consulting a mental health professional to get a handle on how your choice may impact your children.

Is There Such a Thing as a "Trial Separation"?

There's no actual provision in the law for a "trial separation" as such. Normally, it refers to a decision by the spouses to live separate and apart, perhaps to give themselves a chance to assess their marriage free from some of the tension that may accompany living together.

The separation would have legal validity if the spouses entered into a binding separation agreement. Without that, however, it's really nothing more than a voluntary parting of the ways. In that case, one drawback is that the spouses may not have legal recourse if one of them doesn't honor the terms of any informal arrangement they may have, such as who pays which marital bills. (As a matter of course, however, the court will hear matters regarding the children, like custody and child support.)

Must I Have an Attorney for a Separation?

It's not a requirement. But the issues that arise in pursuing a legal separation can be quite complex. Attempting to resolve them without input from an attorney (or mediator) who is well-versed in family law could lead to problems in the future. So, to protect yourself, consider consulting a knowledgeable local divorce lawyer.