When married couples face a breakdown in their relationship, they might feel that ending the marriage is the only option. You can choose to file a petition for divorce or legal separation. Both processes use the same court forms and require only one spouse to file a petition with the court; in California, only one spouse must live in the state to file. While most people have a general understanding of divorce, the specifics of a legal separation can be less clear. So, what happens when you file for a legal separation?
For a comprehensive overview of legal separation in Arkansas and Oklahoma, including key differences from divorce, the legal definition of marriage types (such as regular vs. covenant marriage) and how this affects the requirements for legal separation, and what you can expect from the process, please read on.
Understanding Legal Separation Basics
Legal separation is a court-ordered arrangement that allows married couples to live apart while remaining legally married. Unlike a divorce, legal separation does not end the marriage, but it does establish legally binding rights and responsibilities for both spouses. Through the legal separation process, the court can issue orders regarding child support, spousal support, child custody, and the division of marital property and debts. A separation agreement is often created to outline how assets, debts, parenting time, and other important matters will be handled during the period of separation.
One of the main features of a legal separation case is that it provides a formal structure for financial support and property division, similar to what occurs in a divorce case. The court may also determine who is responsible for paying legal fees, and will address issues such as custody and support for any children involved. Importantly, while you and your spouse are legally separated, you both remain legally married.
This means you cannot marry someone else or enter into a domestic partnership, but you may still be eligible for certain benefits, such as health insurance coverage through your spouse.
The legal separation process typically begins when one spouse files a petition with the court and serves the necessary forms to the other spouse. The court process can be time consuming and may involve negotiations, mediation, or a judge making final decisions if the parties cannot agree. The court forms and procedures for legal separation are often the same as those used in the divorce process, so it’s important to follow the instructions carefully to ensure your legal rights are protected.
Couples may choose legal separation for a variety of financial reasons, to meet residency requirements, or to provide stability for their children while living apart. Some may start with a trial separation, an informal agreement to live separately without court involvement, but a legal separation offers a more formal, legally binding arrangement. This can be especially important for establishing clear boundaries and protecting each spouse’s interests regarding assets and debts acquired during the marriage.
When it comes to property division, legal separation involves the equitable distribution of marital property and debts. The court will consider factors such as the length of the marriage, each spouse’s income and expenses, and contributions to the marriage when determining how to divide assets and debts fairly. This ensures that both parties have a clear understanding of their financial responsibilities and rights moving forward.
Ultimately, deciding whether to pursue legal separation or divorce depends on your unique circumstances and priorities. Understanding the legal separation basics and the court process involved can help you make informed decisions about your marital status, financial support, and the well-being of your family. Consulting with a qualified lawyer can provide valuable guidance as you navigate these important legal issues.
The Legal Separation Process Explained
If you are wondering what happens when you file for a legal separation, it is crucial to understand how this process differs from a divorce. In both Oklahoma and Arkansas, a divorce will legally terminate a marriage. After a divorce is finalized, you and your former spouse will be free to marry other people. However, some married couples prefer to remain legally married while living separately. This decision might be due to religious beliefs, the need to maintain health insurance coverage, tax benefits, or other personal reasons. When couples choose to stay married through legal separation, they often remain eligible for health insurance, tax benefits, and pension rights—benefits that usually cease upon divorce.
Some people also opt for a legal separation to give themselves time to attend counseling and determine whether they truly want to end their marriages or if reconciliation is possible. Navigating this decision can be complex, and seeking legal advice from a family law expert is highly recommended.
Filing for a Legal Separation in Arkansas
Under Ark. Code § 9-11-808, you can file a petition for either a legal separation or a divorce. Arkansas recognizes two types of marriages: a regular marriage and a covenant marriage. The legal definition of your marriage—whether it is classified as a regular or covenant marriage—determines the specific requirements and grounds for legal separation. The process for obtaining a legal separation can be significantly more complicated if you entered into a covenant marriage.
For those in a covenant marriage, you must first complete mandatory counseling before a court can issue a decree of legal separation. Additionally, you must present evidence that your spouse has committed specific actions that constitute grounds for divorce, such as adultery, committing a felony for which they have been sentenced to prison, or engaging in physical or sexual abuse. Other grounds include living separately for at least two years, habitual drunkenness for at least one year, or enduring cruel and barbarous treatment.
For a regular marriage, the process is more straightforward. You can obtain a legal separation after living apart from your spouse for 18 months. Unlike with a covenant marriage, you are not required to prove any specific grounds for divorce.
Filing for a Legal Separation in Oklahoma
In Oklahoma, under 43 OK Stat. § 43-103, you can file a petition for a legal separation in the county where you or your spouse resides. The petition can be based on incompatibility, meaning you don’t have to plead one of the fault-based grounds for divorce. However, if you choose to, you still have the option to file based on a fault ground.
What to Expect After Filing for Legal Separation
Once you file for a legal separation in either Oklahoma or Arkansas, the court will handle your case in a manner very similar to a divorce proceeding. Once you meet the residency requirements, the next step is to file a petition for legal separation with your local family court, which initiates a court case similar to divorce. The court will issue a court order addressing several critical family law matters. The legal procedures in a legal separation are similar to divorce, and the same issues are resolved either through a settlement agreement or by the judge after a trial. This includes the division of marital property. Any property acquired during the marriage will be subject to equitable property division.
The court will also make determinations regarding child custody, visitation schedules, and child support. Both parents have a legal obligation to financially support their children, and the court will issue a child support order based on state guidelines. Furthermore, issues of spousal support, commonly known as alimony, will be decided. For couples with minor children, establishing a clear parenting plan is paramount during legal separation.
After filing the petition and drafting the separation agreement, the next step is to serve your spouse with the legal separation papers, and this can be done via certified mail to provide proof of receipt. If your spouse lives out of state, service can still be completed, and certified mail is an acceptable method to provide proof of service.
You and your spouse will be legally permitted to live apart. Living in the same home usually indicates the relationship has not fully separated, but in limited circumstances, courts may consider couples living in different bedrooms within the same home as separated. You also have the option to negotiate a separation agreement outside of court, which can then be submitted for the judge’s approval.
A separation agreement is a private contract between spouses who are separated or plan to separate, and both spouses must agree to the terms for it to be legally binding. Separation agreements must be in writing, signed by both parties, and both signatures must be notarized to be valid. A well-drafted separation agreement provides clarity and helps prevent conflicts later on. A person who fails to comply with a court order or separation agreement may be held in contempt or sued for breach.
A key aspect of legal separation is that any property you acquire after the petition is filed is generally considered your separate property, not marital property.
After the court issues the decree of legal separation, you and your spouse can continue living separate lives indefinitely. However, it’s important to remember that your marriage is not terminated. In a legal separation, the court divides property and debts and makes orders about financial support while the couple remains legally married. You remain legally married and are not free to marry other people. If, at a later date, you decide you want a divorce, you can file a motion with the court to convert your legal separation into a final divorce decree. In a divorce, the couple is free to relocate, remarry, and move forward in life after the final divorce decree is issued.
Talk to the Attorneys at the Law Offices of Craig L. Cook
If you are considering a legal separation in Arkansas or Oklahoma, it is essential to seek sound legal advice from an experienced family lawyer. The attorneys at the Law Offices of Craig L. Cook can help you understand the nuances of family law and determine whether a separation or divorce is the better option for your specific situation. We are here to guide you through decisions on alimony, child custody, and property division. Contact us today to schedule a consultation at 479-783-8000.
