Legal Separation in Oregon FAQs

If your marriage is on the rocks, you may be contemplating divorce. But before you rush to file, it's worth considering a legal separation, which may offer some couples certain advantages over divorce. Find out if a legal separation is right for you.

What Is a Trial Separation?

A trial separation is a sort of experiment, or an informal agreement between spouses to live apart and see if they can work out their marital problems. An informal trial separation may last a few weeks or a few months, but there’s no fixed timeline.

A more formal separation is a legal separation where a couple seeks to formalize their separation with the court and come to some official agreements about finances and the children, if any.

Legal Separation Basics

Either spouse may file for a legal separation in the county where he or she lives. There are no residency requirements for a legal separation other than one spouse must reside in the county where the separation action is filed. The filing spouse must submit a petition and summons to the court and serve the documents on the other spouse.

Once a legal separation is filed and properly served, a restraining order automatically takes effect preventing either spouse from disposing of or diminishing marital assets. Specifically, either spouse is prohibited from spending marital funds or transferring property except for necessities including:

  • attorney's fees for the existing case
  • real estate or income taxes
  • medical needs or mental health therapy for either spouse or the couple’s minor child(ren), or
  • expenses necessary to provide for either spouse’s basic clothing, food and shelter needs or those of the minor child.

Additionally, a judge may issue a separation order to help couples divide custody and meet financial obligations while living apart. Oregon law prohibits a judge from granting a separation order for an unlimited duration. Instead, your separation order will last for a specified period of time, such as six months or a year. Once the separation period has expired, you and your spouse will have to decide whether you want to proceed with a divorce. Either spouse can request a hearing where a judge will evaluate your family’s circumstances to determine appropriate orders.

Why Do Some Couples Choose to Separate Rather than Divorce?

A separation has some distinct advantages over divorce. Specifically, many couples use a separation period to work out how they will divide assets or time with their children. This planning period can give couples an upper hand in divorce, making the process much quicker and less expensive.

Additionally, a separation may work better for couples who aren’t sure whether they want to go ahead with a divorce or who have not met the residency requirements necessary to obtain a divorce. Before you can seek a divorce in Oregon, one spouse must have lived continuously in the state for at least six months prior to filing a divorce petition. Legal separations only require that a spouse be currently living in the state.

Financially, separations may make more sense than rushing into a divorce. For example, if one spouse has been a stay-at-home parent, it might take some time for that spouse to obtain a job or health insurance. By giving one spouse time to get back on his or her feet financially, the other spouse may avoid a lopsided alimony award and both can begin a divorce in better financial positions. Other couples may want to use a separation period to continue insurance coverage or allow children to finish out the school year without too much disruption to their routine.

What Issues Will My Separation Order Address?

A separation order will address many of the same matters that would be resolved in a divorce. The purpose of a separation order is to minimize friction during a separation period and to provide both spouses with adequate financial support. A separation order may also divide property, distribute assets and debts, and decide child custody and visitation issues, including where child exchanges will take place and which parent will be responsible for providing child support.

Spouses can enter into their own separation agreements and file the agreement with the court. If the agreement adequately meets each spouse’s needs and serves a child’s best interests, then the judge will turn your separation agreement into an official court order. Alternatively, if you and your spouse are unable to reach an agreement, you’ll need to attend a hearing before the judge in your case. A judge will review the pleadings, hear testimony, and evaluate the evidence to create a separation arrangement suited to your family’s needs.

How Will a Separation Order Impact Custody in a Divorce?

Although separation orders are designed to be temporary, they can impact custody in your divorce. The same factors that a judge evaluates in a legal separation proceeding will be relevant at the time you file for divorce. If the custody arrangement awarded during your separation period seemed to be a success, a judge will be unlikely to adjust custody in your divorce. It’s important not to take any court hearing or agreement lightly. Each element of your case can affect your chances of getting custody now and in the future.

If you have questions, you should contact an experienced family law attorney in your area.

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