When your relationship reaches an impasse, it’s time to talk about what steps to take next. For couples that believe reconciliation is still a possibility, you might consider a legal separation, which is when you live separate and apart but you’re still legally married. You can achieve a legal separation by filing a petition (request) with the court, which allows the judge to divide your marital property, establish child support and alimony, and create a parenting plan for your children.
If you’re confident that your relationship is over, you can pursue a divorce, which will allow the judge to terminate your marriage, divide your marital property, allocate your debt, set child and spousal support, and create a parenting plan. Divorce is permanent, and once it’s final, you’re free to remarry, and you can earn money or property without the fear of sharing it with your ex-spouse. (15 V.S.A. § 560.)
One crucial distinction between separation and divorce is that for legally separated couples—because you’re still married—there’s always a chance that the court will consider any earnings, acquired property, or debt to be marital property. To put it simply, even though you’re legally separated, if you want a divorce later, you could be responsible for your spouse’s spending during the separation, and your spouse might receive a portion of your newly acquired property.
The decision to pursue a legal separation is personal, and there’s no right or wrong reason to stay married. Because legal separation can be temporary or permanent, it’s often an excellent choice for couples who believe there is still hope for reconciliation. In cases where the couple is confident that neither wants to remarry in the future, staying married might preserve benefits like health insurance, tax credits, or federal programs like social security.
Other benefits of legal separation may include:
Like many states, Vermont offers its married residents three choices for ending a marriage, which includes divorce, annulment, and separation. If you’re not ready to tell the world that your marriage never existed with an annulment, you’re left with the choice between divorce or legal separation. If you’re not prepared for a divorce, you can file a formal complaint for legal separation with the court.
Because the process for divorce and legal separation are almost identical, you’ll need to make sure you meet Vermont’s divorce requirements. (15 V.S.A. § 555.) First, at least one spouse must meet the state’s residency requirement, meaning at least one of you has lived in Vermont for 6 months before you file your paperwork with the court in your county. (15 V.S.A. § 592 and §593.)
The filing spouse will also need to provide a legal reason—or, grounds—for the application for separation. Vermont is a hybrid divorce state, meaning couples can ask the court for a legal separation (or divorce) based on no-fault or fault grounds.
If you’d like to use your spouse’s marital misconduct as your basis for divorce, you may allege adultery, conviction of a crime, abuse, or any of the other accepted grounds. For couples that want the process to be as peaceful as possible, you can use the state’s no-fault system by demonstrating that you’ve lived apart for at least 6 consecutive months and there’s no possibility for reconciliation. (15 V.S.A. § 551.)
There’s a mandatory three month waiting period from the time you file to the time when the judge can approve your request. The court refers to this as the “nisi period,” and you should use this time to negotiate the terms of your separation. If you can’t agree on a specific issue, you can ask the court to decide for you. (15 V.S.A. § 554.) Once the waiting period expires, the judge can grant your request and finalize your separation.
In nearly every divorce or separation case, spouses are almost always able to negotiate a separation agreement, which is a legally-binding contract, which contains essential information that relates to your situation. Separation agreements are mandatory, so you should work with your spouse to reach an agreement on the most important terms for your case because if you can’t, the judge will decide for you.
Your agreement should address issues about child custody and visitation, child support, how to divide marital property, who should be responsible for marital debts, like the mortgage and spousal support. You can also place a timeframe on your separation, meaning it can last one year or a lifetime.
What you do during a period of separation can have an impact on your custody arrangements in a future divorce. When there are children involved in any legal case, the judge’s primary concern is what’s in the children’s best interest. If you and your spouse separated for a temporary period and you didn’t visit or support your children, the court may consider that behavior when deciding custody.
The judge will evaluate a series of best interest factors to determine the best parenting plan for your family, some of which include:
The court believes that parents know what’s best for their children, so if you and your spouse reach an agreement on custody and visitation, the court will approve it. (15 V.S.A. §665 and § 666.) If you and your spouse decide to divorce later, your original custody order may have an impact on the final custody award, or the judge could consider your behavior during your separation and change the arrangement altogether.