When a couple separates, they consciously choose to live apart. Usually this means that the couple has chosen separate residences. Most of the time, you won’t be considered separated if you and your spouse are still living in the same house. This rule applies even when spouses reside in separate bedrooms.
You may informally separate from your spouse or file a petition for a legal separation with the court. Informal separations require no formalities and may last a matter of weeks to a few years. A formal separation is officially recognized by the court and may impact future court orders. However, certain benefits come with formal separations.
Spouses can file for a legal separation in the county where either spouse lives. Unlike a divorce, there is not a residence period required to begin a separation action in Oklahoma. The spouse seeking a separation must file a petition and affidavit with the court.
You do not have to prove “grounds” or reasons for the breakup to obtain a separation. Like a no-fault divorce, a judge may grant a legal separation on no-fault grounds of irreconcilable differences. As part of a legal separation action, a judge will issue separation orders. Either spouse may request temporary orders after a petition for legal separation has been filed.
When a judge issues a separation order, it may address the following issues:
To determine an appropriate custody or property award, a judge will schedule a hearing to hear evidence and testimony in your case. You and your spouse will have the opportunity to present your case and provide the judge with evidence that supports your claims.
Alternatively, you and your spouse can work out your own agreement. Mediators can help couples reach agreements in some cases. A mediator may even be able to help you draft a separation agreement, but a mediator is not a substitute for an attorney because mediators can’t offer legal advice. If you and your spouse are able to reach an agreement, you’ll submit it to a judge. A judge may hold a brief hearing to ensure that your agreement isn’t grossly unfair, that it meets any statutory requirements and serves your children’s best interests.
Because separation periods are temporary periods, they give you and your spouse a chance to think about why your marriage isn’t working and may allow you to reconcile. During a separation period, many couples spend time working out how they will pay monthly expenses, divide property or split child custody. For those couples who decide to divorce after their separation, the time spent splitting assets and working out an agreement leaves them better prepared for a divorce.
Separation also presents some monetary benefits for couples. Specifically, a separation period allows a needy spouse to continue to receive insurance benefits from the other spouse. This is not an option once a divorce is finalized. A separation may offer one spouse the chance to get back up on his or her feet financially. Couples may also use a separation if they have religious reasons for wanting to avoid a divorce.
Although separations have their purpose, they are not a final adjudication and your life is in limbo until you divorce. While you are separated, you are not free to remarry, you can’t cash out your retirement or sell property and you shouldn’t relocate to a different state. When you’re truly ready to move on with your life, divorce is your only real option.
A judge will consider the same factors for a separation and a divorce. For example, in determining whether spousal support is appropriate, a judge will look at each spouse’s earning potential, work history, financial needs and ability to pay spousal support if awarded. Unless your circumstances have dramatically changed between your separation and divorce, a judge is unlikely to disturb earlier orders.
This is especially true regarding child custody. A child’s best interests are at the heart of any custody decision. A judge will evaluate a child’s best interests in a separation proceeding by looking at each parent’s relationship with the child, the child’s needs, each parent’s ability to meet those needs, the child’s adjustment to school and community, the child’s relationship with siblings and extended family, and the child’s preference, if the child is of a sufficient age and maturity. These are the same factors that are relevant to child custody in a divorce. Moreover, if a child thrives during a separation period, a judge is more likely to keep the same custody arrangement in a divorce.
If you have questions, consider speaking with an experienced family law attorney in your area.