Sometimes, no matter how hard you try, marriages fail. We’ve all heard of divorce, which is the process couples use to end their marriage legally. Divorce begins when one spouse files a motion (request) with the court. Typically, couples can negotiate the terms for their divorce, including child custody and visitation, child support, property division, and spousal support. If you’ve agreed to most of the conditions, but still have disputes about others, you can ask the court to decide for you. Once the judge finalizes your divorce, both you and your spouse are free to remarry, acquire property, and relocate as single people.
The process for legal separation in many states is nearly identical to divorce, but there’s one critical difference: legal separation doesn’t terminate your marriage. Although you (or the judge) decide the same divorce-related issues, and once the judge grants your request you’re both free to live independent lives, if either spouse wants to remarry in the future, that spouse must ask the court for a formal divorce, first.
Both legal procedures are similar in cost and time commitment; however, if you pursue legal separation before a divorce, you’ll likely be paying twice.
Much like the decision to get married, the choice of whether to pursue a legal separation or divorce is intensely personal. If you’re not sure if you want a divorce, legal separation might be the most appropriate way to give you time apart while you try to repair the relationship.
Many couples decide to legally separate to continue employer-sponsored health care for a spouse. If you get divorced, it will likely trigger your health insurance to cancel your spouse’s benefits, and in a country where one medical emergency can bankrupt a family, sometimes it’s easier to stay married.
Although there’s no right or wrong reason to pursue legal separation instead of divorce, some of the most common include using separation:
Yes, but in Utah, it’s called an action for "separate maintenance." The process begins when either spouse files a petition for separate maintenance with the local court. You will need to demonstrate that you or your spouse meet the state’s residency requirement, meaning at least one of you lived in Utah for a minimum of 90 days before filing. (U.C.A. 1953 §30-3-4.5.)
Because the process for separate maintenance is nearly identical to divorce, you must also provide the court with a legal reason—or, grounds—for your request. Utah is a mixed divorce state, meaning you can ask for separate maintenance based on your spouse’s marital misconduct (domestic violence, desertion), or you can save time and money by requesting a no-fault separation, and state that your relationship has suffered irreconcilable differences. (U.C.A. 1953 § 30-4-1.)
Utah law requires the judge to wait for a minimum of 30 days (90 days if you filed before May 8, 2018) before acting on your case. The court may waive the waiting period if a judge finds that there are extraordinary circumstances, but this is rare. If you have minor children, you must attend divorce orientation and divorce education classes before the judge can grant your request. Most couples can fulfill this requirement during the waiting period. (U.C.A. 1953 § 30-3-18.)
If you don’t have minor children, you can use the waiting period to negotiate the terms of your separation. You should determine the best parenting plan for your family, how you will handle property and debt division, and resolve any issues about child or spousal support.
If there are outstanding issues in your case, the court requires both parties to attend at least one mediation session before the judge hears your case. Mediation is a way for both spouses to discuss their concerns with a trained, neutral third-party, in a safe and controlled environment. The purpose of mediation is to reduce the time and tension commonly associated with divorce or separate maintenance. (U.C.A. §30-3-39.)
If either spouse wishes to convert the separation into divorce later, that spouse can file a motion with the court. Your spouse can object, and if so, you’ll need to go to court and demonstrate that you meet the guidelines for divorce. If you do, the court will approve your request.
You can participate in a trial separation, which is where you live apart for a specific time and reassess your marriage. Most couples can orally agree to the terms of the trial, and it’s usually the best way to find out if separation or divorce is right for you. The court doesn’t monitor trial separations, so if either spouse doesn’t want to participate, that spouse can file a formal petition with the court for separate maintenance or divorce.
Yes. Whether you decide to proceed with a case for separate maintenance or divorce, the court requires your terms to be in writing. You’ll want to address custody and visitation, child support, property division, healthcare, and spousal support. A separation agreement is legally-binding on both spouses, and the court uses this type of contract to protect both parties from frivolous lawsuits in the future.
Not necessarily. In any case involving minor children, the court must consider the children’s best interest before creating a parenting plan. In Utah, there is a rebuttable presumption (meaning you can overcome it with evidence) that joint legal custody is best for the children. Judges will evaluate each parent’s ability to provide for the children using a series of best interest factors, before making a final decision. (U.C.A. § 30-3-10.)