What is a legal separation?
In Ohio, a "legal separation" is when parties to a marriage obtain a "separate order’ from the Court delineating their rights and responsibilities toward each other while remaining legally married. For many, the separate order is preferable to a divorce for a variety of reasons. The spouses are entitled to all rights and duties of marriage except for the right to decide on divorce at a later time. In fact, even if one or both spouses in a legal separation desire to remain married, they may be permitted to convert the action to a divorce proceeding so that they may be divorced in the future.
Because Ohio does not recognize the status of "Separated," much of the discussion in this blog post are framed as the difference between "Separating" and "Divorcing." Separating is not generally a recognized status in Ohio. When the Court grants a legal separation, it remains the role of the Court to determine the rights and responsibilities of the parties just as in any divorce. However, parties are still considered to be legal spouses and must rely on the Court to determine all of the issues related to the separation from the point at which the legal separation action was filed to the point of finalization of the divorce or legal separation .
The decision to separate rather than divorce is highly personal. For some, the impediments related to divorce make separation preferable. For others, divorce is a more preferable option. Separation may also be preferable to divorce for parties that are apprehensive about exposing the private details of their relationship to family, friends, co-workers, or the public at large through the divorce process. Some people prefer to limit the amount of information that enters the public realm should they proceed with separation rather than divorce, for any number of reasons.
Some parties may choose separation to later assess whether they will actually divorce. For some parties, the decision to separate itself is a step in a process where one or both parties are open-minded about whether the marriage can continue after separating.
Ohio is a "no-fault" State, meaning that spouses do not need to prove "fault" in the breakdown of disagreement, arguments, as well as the common ground for divorce (i.e.: incompatibility) to "win" a divorce. Whether legally separating or divorcing, the same reasons are available as grounds for a divorce.
Legal Separation Grounds in Ohio
Similar to divorce, there are legal grounds for separation in Ohio. The legal grounds for separation are: The similarities between legal grounds for divorce and legal grounds statutory separation are striking. Many couples face the exact same issues in their marriage whether they are seeking a divorce or legal separation. Being the equivalent of "irreconcilable differences", incompatibility is the most frequently used ground for a legal separation in Ohio. Examples under "willful deprivation" include not providing spouses with the means of living separately, such as housing or utilities. Another common example of "willful deprivation" is one spouse not helping another if they have a physical or mental problem.
The Legal Separation Process in Ohio
For many couples, the legal breakout between partners is a process that everyone expects. When it’s time to separate from your spouse there can be some confusion about if you should file for legal separation in Ohio or divorce. For some couples, separation is not enough so you will have to go through the divorce process and complete all of the legal requirements that go with it. Legal separation is the first step and before you file for legal separation, you should know about these steps.
1. The Initial Filing
There are forms that need to be completed at the Clerk of Courts office. For a legal separation in Ohio, the complaint will be called a Petition. This officially opens a case with the court to take on the legal matters of separation.
2. Filing Fees
When filing the forms at the courthouse, you have to pay the fees. For legal separation, you can expect to pay about $350. You can ask for a waiver if you can’t afford the fees. Medicaid, food assistance, and TANF can also help with fees. You’ll also have to pay to serve your spouse the paperwork. The Sheriff’s Department serves separation papers. When the fees are paid, the court clerk will assign a case number and give you a file stamp for your separation paperwork. There are forms in the back of the separation paperwork that you’ll need to fill out. You’ll have to provide them later.
3. Servicing Your Spouse
Your spouse must be served the separation paperwork within 28 days. A divorce may require you to serve other people. An attorney can help make sure that the correct people are served and in a timely manner.
4. Response to Separation
Once your spouse is served, they have 28 days to respond to the request for the separation. If they don’t respond, the legal separation in Ohio will be granted.
5. Court Hearing
You’ll have to appear in court to present your case in front of a judge. It’s just like a divorce hearing except the judge can’t grant the divorce for you. If the judge does not think that you are separated from your spouse, your petition will be denied.
6. Final Decree
Once you are granted your legal separation, you will receive a journal entry from the judge. Have your attorney request a copy. Once you receive a copy you should be separated legally. You must live separately from your spouse for at least a year for the divorce to be granted.
Documents Required for Legal Separation
The primary document that you need to file for legal separation is the Separation Complaint. Your legal separation complaint for Ohio must address and detail several issues: As a part of the filing process for the legal separation, you will also need to address any pending issues or concerns through a Motion and Affidavit. This Motion is a request to the courts that address any issues related to the separation that are of immediate concern to you and your family, such as, the disposition of marital assets, custody of children, or support matters. Once you have prepared the Separation Complaint, you will then need to file this with the appropriate Clerk’s office in the County in where you reside. Be sure to include a completed Affidavit and Motion when filing your complaint and any additional documentation related to your Separation Complaint. If you are not comfortable filing your own legal separation paperwork for Ohio, you may consider having an experienced attorney file your separation complaint.
Financial Aspects of Legal Separation
In the eyes of the law, a legal separation is like a divorce. If you and your spouse were to get legally separated, everything that is true during a divorce also somewhat applies to a legal separation. Everything from division of assets to child support payments must by law be resolved. Like a divorce, a legal separation involves dividing up assets that you both acquired and/or purchased after the date of your marriage. As part of a legal separation, some assets are considered marital property, which means the value of the property is considered to belong to both spouses. That means you must both agree on selling the asset and splitting the proceeds or deciding who is going to retain ownership of the asset. Other properties acquired during the marriage are considered separate property , which means you have no claim to it and anything that is specified as belonging to one spouse in a legal document is just that — an item that belongs to only one spouse. A legal separation decree will always cover spousal support, otherwise known as alimony. Just like in divorce, spousal support is designed to give a financially dependent spouse the support he or she needs to continue to live comfortably. This amounts to what the receiving spouse would have been entitled to had they remained married and doesn’t always amount to one-half of a net income, like is commonly assumed. There are several factors that decide the proper amount of spousal support and its duration: All child support payments must be covered as part of the decree. These amounts are decided much like a typical child support decree, meaning everything is calculated based on how many children there are, how old they are, how much time each parent spends with the children and what each of the parents makes for a living.
Ohio’s Legal Separation Vs. Divorce
Ohio law distinguishes between the terms divorce and separation. Divorce terminates the status of the marriage, while a separation agreement allows financial and parenting issues arising from a marriage to be settled while the marriage remains in legal existence. Separation agreements may be reached between the spouses and do not have to go through the court. However, it is generally recommended that they be submitted to the court for judicial approval as a part of a court case so that the parties will have the benefits of court enforcement. If you reach an agreement, your private lives remain private. Like a divorce, separation agreements may involve property division, health costs, child support responsibilities and spousal support obligations.
Because divorce implies the termination of the marriage relationship, if you and your spouse reach an agreement that covers important issues in your life, it may take the form of a separation agreement, which stipulates that you live apart, even though the marriage has not ended. Basically, a divorce is just a more extreme form of separation.
A separation agreement may be desirable in some instances. For example, if one of the spouses is dependent on the other for income or the children’s support, it may be in that spouse’s best interest to stay married to obtain whatever financial support he or she can get from the other. If the parties are not in a position to enter into an agreement or if the agreement does not cover all the issues, a divorce is probably the best alternative. If the agreement covers all the parties’ needs, they may opt to remain married. Frequent reasons why the court will approve a separation agreement are if one of the parties is pregnant or one of the parties has serious health issues.
A separation agreement is really a way of postponing the final decision to divorce, rather than permanently resolving the issues. For example, it is possible that the parties may reconcile after living apart for a while. In such a case, the dissolution of marriage would be unnecessary.
Terminating or Amending Legal Separation Agreement
There are some situations in which a legal separation agreement can be modified or terminated. When you enter into an agreement, you have to understand that things may change. Your ability to modify the agreement depends on the circumstances and how agreeable both parties are concerning the changes. Many legal separation agreements include specific terms relating to how the agreement can be changed in the future, whereas others don’t.
If both you and your spouse mutually agree that an update needs to be made to the settlement terms of the agreement, you can always do that simply by making it formal before the judge in the court where the agreement was issued. You also have to serve a copy of the proposed modification document on your spouse and get their written consent. If that’s properly done, the judge will sign the modification and re-enter the separation order with the new changes. This is done to put the change into the official court records, and it updates the original separation agreement. If the court is given notice of the modification, it won’t interfere with the legal separation in any way.
In Ohio, you can use a divorce court to modify your separation agreement if circumstances in your life have changed significantly since you got the order. You can’t walk into the office of a judge and just verbally request a change in your legal separation agreement because you’re unhappy with the one you have. You have to file a written motion to obtain the change, and that motion should state what your request is and the reasons you think the change needs to happen. The judge will not modify the separation agreement unless you demonstrate that a substantial change in living conditions has occurred since the separation. For example , the modification of your separation agreement could occur because of a substantial pay decrease, a significant raise in pay or other major shifts in your income.
The legal separation agreement can also be terminated in the same way as a divorce petition. It requires you to file a written request with the appropriate court to terminate your separation agreement. When you file a motion to terminate your separation agreement, you’re requesting that the agreement ending the issues in your marriage be replaced with a divorce because you and your spouse can no longer live with each other. Next, the court will decide if the separation agreement terms were fulfilled and whether to order a divorce. If the judge decides to grant the termination of the separation, the couple’s marital assets will be divided like they would be in a traditional divorce. Disputes beyond marital assets can be contested, and the terms of the divorce will be established either through a trial or an agreement between both parties.
Ohio law does allow you and your spouse to add or remove property to a legal separation agreement at any time. When you get a legal separation, a property settlement is filed with the court. A divorce decree won’t be issued until the court receives a final property settlement. If nothing in the property settlement has changed since this time, the terms of that settlement will remain firm. If you and your spouse want to change the financial terms of your separation agreement, you’ll have to file a document that both of you have signed to engage the court’s jurisdiction. Updating the property settlement will require a court hearing.