Legal Separation in Washington FAQs

Learn about legal separation in Washington.

By , Attorney · Cooley Law School
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Is There a Difference Between Legal Separation and Divorce?

Yes, and although both methods change your legal status, the difference between divorce and legal separation could have a significant impact on your life. Divorce is the process couples use to terminate a marriage and begins when one spouse files a petition for divorce with the court. When you ask for intervention with your marriage, you are giving the judge permission to decide issues about property division, child support, custody, and spousal support. Most couples will reach an agreement before the judge gets involved, but if there are lingering issues, the judge will decide before finalizing your divorce. Once you're divorced, the court views each spouse as a single individual capable of remarriage, entering into contracts, and acquiring property and debt.

Legal separation is very similar to divorce, however, in the end, you're still legally married. Although this concept seems like it would be ideal, you must remember that since you're still married, you must obtain a formal divorce before you remarry in the future. Additionally, if your spouse accrues debt during the separation, it's possible you could be responsible, depending on the circumstances. (RCWA 26.09.050(1).)

Are There Benefits to Legal Separation?

Legal separation isn't a step towards divorce. Instead, it's an alternative. Both legal separation and divorce will divide assets, create a parenting plan, and assign financial responsibility to each spouse. That said, only divorce terminates your marriage, but that might be beneficial if you're considering reconciliation with your spouse after your separation. Couples who wish to resume living as a married couple, even after the judge finalizes a legal separation, only need to ask the court to terminate the arrangement to be legally married again.

For some couples, a legal separation is the only way to preserve valuable tax or federal benefits, like social security, and health insurance, which is often the only reason some people stay married. A legal separation will also provide troubled families with the space needed to restore stability for the children, all while allowing each spouse to resume living independently from the other.

Does Washington Allow Legal Separation?

Yes. The process for legal separation in Washington is virtually the same as divorce, meaning if you can meet the state's divorce requirements, and both spouses agree to the legal separation, the court will honor your wishes. The process begins when either spouse files a petition (request) with the local court. You'll need to meet Washington's residency requirement, meaning at least one spouse is a resident in the state at the time the petition for separation is filed. (RCWA 26.09.030.)

Next, you'll need to provide a reason—or, grounds—for your request. Washington is a strict no-fault divorce state, so the only acceptable ground for divorce or separation is that your marriage is irretrievably broken. There's a mandatory waiting period of 90 days from the time you file until the judge can act on your case. Couples should use this time to negotiate the terms of the separation, including property division, financial issues, and child custody. If there are still disputed issues, the judge will decide for you.

Once the judge finalizes your legal separation, you must wait six months before asking the court to convert it to a formal divorce. (West's RCWA 26.09.150.)

What If We Aren't Ready to Involve the Court?

Even the most experienced attorney gets nervous when they get a new case, and that's because the legal system is tough and intimidating. If you and your spouse aren't ready to leap into the legal world of divorce or separation, you can participate in a trial separation, which is where you live apart and reassess your relationship before involving the court. You'll need to agree to a specific time for the trial, and to any other terms, like custody, visitation, and support matters. The court doesn't monitor trial separations so if either spouse strays from the agreement, the only recourse for the other party is to move forward with a formal request for divorce or separation.

What Is a Separation Contract and What Should it Include?

A separation agreement—or, separation contract—is a legally-binding document created and signed by both parties in a divorce or separation. Typically, the parties work together to determine the terms and conditions of their separation, and once they agree, put the deal in writing. Separation contracts prevent frivolous lawsuits in the future, and it takes the guesswork out of what each spouses' responsibility is once the court finalizes the case.

A separation contract should include a detailed parenting plan for the children, and terms of child support, alimony, and property division. You must make sure that you understand the full agreement before you sign it. If you disagree with it later, you'll need to demonstrate that it was unfair when you signed it, through the appeals process.

Additionally, the separation contract doesn't terminate automatically if you and your spouse reconcile, so if you resume living together, at least one spouse will need to ask the court to terminate the agreement. (See In re Marriage of Moody, 137 Wash.2d 979 (1999) and West's RCWA 26.09.070.)

Should I Hire an Attorney?

Whether you're considering a divorce or legal separation, the outcome will undoubtedly alter your marital status, time with your children, and it could dramatically affect your ownership of property. An experienced family law attorney will advocate for the best result for your case, so if you're unsure how to proceed, consider contacting an attorney in your area.

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