Legal Separation in Utah FAQ

If you live in Utah and are thinking of splitting up with your spouse, you might be wondering about your options for making it legal. Should you get divorced, or is a legal separation a better choice? Is there a third option? This article will dive into the most common questions on legal separation and how it works in Utah.

What's the difference between divorce and legal separation?

A divorce ends your marriage and allows you to get remarried. A legal separation gives you a framework to live independently from your spouse, but you'll still be legally married at the end of the process. That means neither you nor your spouse may marry someone else.

Still, the process and steps for getting a legal separation are similar to a divorce. After you file a petition, the judge will issue orders dealing with the same issues that are involved in a divorce, such as:

• the division of your marital property and allocation of debts
• support or maintenance payments for one of the spouses (known as alimony in divorce)
• child custody, and
• child support.

Does Utah allow legal separation?

Utah has a legal process that's essentially the same as a legal separation in other states but is known by a different name: "separate maintenance." The state also has another legal procedure that allows spouses to get a "temporary separation order" without filing for divorce.

These two types of legal separation have different requirements and different consequences for couples. We'll get into the details below, but the most important difference is that temporary separation is just that—temporary—while separate maintenance orders may be indefinite.

Why choose separate maintenance or temporary separation instead of divorce?

Much like the decision to get married, the choice of whether to pursue a legal separation or divorce is intensely personal. Because the separate maintenance procedure is a full-on legal case like a divorce, it can take as long and cost as much as a divorce. Also, because of Utah's legal requirements for separate maintenance (discussed below), you won't be able to take advantage of the time- and cost-saving advantages of an uncontested divorce. And after all that, you'll still be legally married.

Despite those drawbacks, some people may have reasons for choosing separate maintenance, such as religious beliefs or other objections to divorce, or a desire to keep some of the financial benefits of staying legally married. (However, if you're planning on legal separation so one of you can stay on the other spouse's health insurance, you should check with the insurance provider first. Some insurance companies will treat legal separation the same as divorce and terminate the spouse's coverage anyway.)

Couples in Utah may choose to go the temporary separation route as an in-between option when they're not ready to start the official divorce process. Maybe they're hoping to reconcile at some point, but they still need court orders to resolve property, support, and custody issues while they're separated.

One potential downside to temporary separation orders is that they're only valid for a year. However, if one of the spouses files for divorce within a year after the temporary separation petition was filed, the two cases can be consolidated. That way, the temporary separation orders will continue in the consolidated case. (Utah Code § 81-4-104 (2024).)

What are Utah's requirements to file for separate maintenance?

To file for legal maintenance in Utah, there's no time limit on the state residency requirement. Either you or your spouse must simply be a state resident when you file the petition.

As with divorce, you also need a legally acceptable reason ("ground") to file for separate maintenance. But the grounds for separate maintenance are different than they are for divorce. While Utah has allowed no-fault divorce for several decades, historically you could only file for separate maintenance in the state by claiming that your spouse engaged in misconduct by deserting you without a good reason, or refusing or neglecting to support you, despite owning property in the state or otherwise being able to provide support.

In September 2024, Utah added another legal ground for separate maintenance. You may simply declare that your spouse is living separately and apart from you, without any fault on your part. As with all the grounds, you'll need to prove that claim. It's not clear yet whether Utah's courts will allow you to meet that requirement if you agreed to the separation with your spouse.

(Utah Code § 81-4-202 (2024).)

What are the requirements in Utah for temporary separation?

Unlike with a divorce or separate maintenance, you don't need any legal grounds to file for temporary separation. However, you and your spouse:

• must have been state residents for at least 90 days before you file the petition, or
• were married in Utah and agreed to the state's personal jurisdiction when you applied for the marriage license (meaning the state's courts have legal authority over you in divorce or legal separation cases).

You'll need to pay a filing fee and serve your spouse with the petition. Also, if you have a minor child, you'll need to take Utah's divorce orientation course within 60 days after you file the petition for temporary separation. Your spouse will also have to take the class within 30 days after being served with the petition. Your case won't move forward until you complete the class.

(Utah Code § 81-4-104 (2024).)

Do we need to live apart to get a legal separation in Utah?

Nothing in Utah law says that you must be living apart to get temporary separation orders. Of course, most couples who seek these orders are planning to live in different homes or are already doing so. But if you can't afford to maintain separate residences, you might want to try leading separate lives while staying under the same roof (probably in separate bedrooms). In that scenario, you may still need court orders to untangle your finances and deal with other issues in your temporary separation.

Utah's laws on separate maintenance also don't have an explicit, blanket requirement for living apart. But the grounds for filing a separate maintenance petition (as discussed above) either require or assume that the couple is no longer living together.

What is a separation agreement?

If you want to protect your rights when you're separated—and you and your spouse can cooperate—you may reach an agreement addressing any of the issues related to your separation, including your finances and property, child custody and support, and whether one spouse will provide financial support for the other.

Although a signed, written agreement is a binding contract, it can be more difficult when it hasn't been made part of an official court order. In most states, you can't do that with a separation agreement if you haven't filed for divorce. In Utah, however, spouses may get temporary separation orders based on their agreement (sometimes called "stipulated orders:). Of course, if they can't agree, a judge will have to resolve the issues for them.

You might also be able to get a separate maintenance decree based on a separation agreement. But that wouldn't be a likely option if you've filed your petition based on one of the "fault" grounds (as discussed above), or if your spouse disputes your claim that you aren't at fault for your separation.

Can we change our minds about the legal separation?

Temporary separation in Utah is, by its nature, not meant to be permanent. As discussed above, the orders expire after a year unless you file for divorce within the time limit. If you and your spouse decide to get back together before then, you can have the legal separation case dismissed.

Separate maintenance orders are indefinite, except that any support orders won't be valid after one of the spouses dies. But if you and your spouse can prove that you've voluntarily and permanently reconciled, a judge may end any obligations under the orders. (Utah Code § 81-4-204(3)-(4) (2024).)

Do I need to hire an attorney for a legal separation?

If you and your spouse can reach a separation agreement, you may be able to get temporary separation. (And if you're having trouble agreeing on some of the issues, mediation might help you resolve your differences.) If at all possible, it's always a good idea to have a lawyer at least review your separation agreement, to make sure that you haven't missed anything important or inadvertently given up important legal rights.

The official court forms to file petitions for temporary separation or legal maintenance aren't available online. But you should be able to get assistance from the Utah Courts Self-Help Center. In addition to providing the forms and help completing them, the staff attorneys can answer your questions about the process and give you information about other resources.

However, you should strongly consider speaking with a lawyer if you aren't able to agree on all the issues, or if you need to prove one of the grounds for legal maintenance (discussed above). Just like in a contested divorce, it can be difficult and risky to pursue a contested temporary separation or legal maintenance case on your own. An experienced, Utah family law attorney can help navigate the legal process, gather the evidence you'll need, and protect your interests.