Family law clients often contact our firm to assist them in seeking a
legal separation from their spouses, believing that a separation is a
better option than a divorce. While it may be a good option for certain
clients, a legal separation is generally just as expensive as a divorce,
and may not offer the kind of protection that a client is seeking. For
that reason, it is important for clients to consider exactly what they
are trying to accomplish, and how best to achieve that.
Clients who want a legal separation instead of a divorce are often
conflicted about whether to stay in their marriages in the first place,
and believe that a separation is a way to “test the waters.” Such
clients are often better advised to use their financial resources to
seek marital counseling instead, as legal separation proceedings are
likely to give rise to the same issues that would arise in divorce
proceedings – and therefore, may create additional tension and stress in
the marriage that make divorce inevitable. Clients then must pay
additional fees to have the separation converted to dissolution.
Clients may also believe that a legal separation will allow them to
live separately from their spouses, while maintaining insurance coverage
available through their spouses’ employment. However, insurance
policies may exclude coverage of spouses who are legally separated from
the insured spouse. Clients must therefore carefully review whether
insurance coverage would continue during a legal separation. Similarly,
clients must also consult with his or her tax advisor to determine the
tax consequences of a legal separation as compared to a divorce.
Clients often seek a legal separation to cut off any liability for
their spouses’ debts. However, under Oregon law, a spouse is only liable
for debts incurred by the other spouse to pay for the expenses of the
family and the education of minor children. After a separation, a
spouse’s liability for post-separation debt incurred by the other spouse
is limited to those debts incurred for the maintenance, support and
education of the minor children of the spouses. A legal separation is
not necessarily required to trigger this reduced liability; rather, it
is one of several factors that the court will consider to determine
whether the spouses are in fact separated. As a result, a client may
choose to wait to see if the marriage can be saved, or to proceed with a
divorce instead.
A legal separation may be an excellent option when a client’s
religious beliefs prevent them from seeking a divorce, or when a client
needs to establish child custody, parenting time, or support, but has
not lived in Oregon for the six months needed to establish residency for
a divorce.
In summary, while a legal separation can be useful in certain
circumstances, it is often not the best option for a client whose
marriage has broken down. I always carefully explore my clients’ reasons
for seeking a separation to determine if it is the best strategy, or
whether other options would better serve their needs.
“This advisory is published by Bryant, Lovlien & Jarvis, PC
to provide a summary of significant developments to our clients and the
community. It is intended to be informational and does not constitute
legal advice regarding any specific situation. This material may also be
considered attorney advertising under court rules of certain
jurisdictions.”