In its simplest terms, a separation is a married couple's conscious choice to live apart. Separations come in many forms. Some are short-term, informal splits. Other separations may last years and come with specific orders from the court. An informal separation begins when you and your spouse choose to live apart.
An informal separation doesn't require a judge's approval, and it can last as long as you and your spouse desire. Even if your separation is informal, you and your spouse can't live in the same home while you're separated. If you do, even for just a few nights, it will start your separation period over.
Alternatively, you and your spouse can seek a formal separation recognized by the courts. Either spouse may file a petition seeking a legal separation. A judge may grant a legal separation on the same grounds as a divorce—fault or no-fault grounds. A legal separation doesn't preclude you from obtaining a divorce. In fact, in many cases, a legal separation is a step forward toward divorce.
In a separation proceeding, as soon as either spouse files and properly serves a petition and summons for a legal separation, certain court orders will issue automatically. These typically include restraining orders that prevent both spouses from selling or transferring marital assets.
In Rhode Island, spouses in a pending divorce or separation action are prohibited from selling, transferring, disposing, concealing, or removing any individually or jointly-held property while the case is pending. Some exceptions to this rule are payments for attorney's fees or purchases and spending for typical day-to-day expenses.
In addition to certain spending restraints, your separation order may also include provisions awarding child support, alimony, child custody, right to possess the marital home, health insurance coverage, and any other award the judge deems appropriate in your case.
Separation orders are similar to orders contained in a divorce decree. Both types are final orders that are enforceable by the court. However, separation orders aren't designed to last forever. In fact, many judges put a limit on how long separation orders may last such as 6 months or a year.
Spouses can reach their own separation agreements. In fact, when couples are able to work out their own agreements, they are usually better satisfied with the results than when matters are left completely up to a judge. You and your spouse may negotiate an agreement on your own, or hire a mediator to help.
Mediators can't offer you legal advice, but they're skilled at helping couples reach a compromise. Once your agreement is drafted and signed by both spouses, you'll need to submit it to a judge for review and approval. A judge will ensure that the agreement meets any children's best interests and both spouse's needs.
When spouses aren't able to reach an agreement on their own, a judge will schedule a hearing to decide matters. Be sure to come prepared to a court hearing with evidence and witnesses that support your claims. A judge will evaluate your family's overall needs, including finances, family obligations, and a child's best interests to create orders best suited to your family's circumstances.
Separations offer some tangible benefits over a divorce. For example, a separation period gives couples time to work out their differences and possibly reconcile or time to work out what they want in a divorce. Separated couples may use their time apart to negotiate a custody agreement or to decide how they want to divide property when they officially split. When you go into a divorce better prepared, you'll usually save time and money.
Additionally, some couples use separation periods for religious reasons, monetary reasons or to allow children to finish out the school year. Some religions prohibit divorce, so a separation period may offer a couple the benefits of living apart without a divorce. Separations may also be a better choice for couples where one spouse is struggling to find work or in need of continued health insurance coverage from the other. Once your divorce is final, you can't be included on your spouse's insurance plan, but you can during a separation period. Additionally, a separation period may give an unemployed spouse time to find a job. Giving a spouse time to find employment before beginning your divorce may also help a judge make a more appropriate alimony award in a divorce.
If you have questions, you should speak with an experienced family law attorney in your area.