What is the difference between Legal Separation and Divorce?

In general, there is a misunderstanding of the term “legal separation.”  While divorce is the legal dissolution of the marriage contract between spouses, a legal separation is generally understood as a binding separation of spouses without actually dissolving the marriage through divorce.  However, there is technically not any legal proceeding called “legal separation” in Utah.  Instead, there are a few distinct methods of accomplishing a legal separation. These have different legal requirements and effects, so it is important for someone who is considering a legal separation to meet with an experienced divorce attorney or family law attorney. The following are three main types of legal separations:

Motion for Temporary Separation Order. A Motion for Temporary Separation Order is a court action that can be filed for those who may need a court ordered legal separation. The court can issue orders regarding child custody and parent time, child support, alimony, possession of home and real property, payment of debts, etc.  A Temporary Separation Order expires after one year unless it is converted into a divorce action.

See Utah Code 30-3-4.5

Petition for Separate Maintenance. At first glance, a Separate Maintenance seems like it would be a preferred legal separation because it is court-ordered like the Temporary Separation Order but without the one year expiration. However, there are very specific grounds that must exist to qualify for a separate maintenance action, and the grounds seem to generally prevent a stipulated Separate Maintenance order.  To file a Petition for Separate Maintenance, the Petitioner must prove that a resident of Utah:

  1. deserts a spouse without good and sufficient cause;
  2. being of sufficient ability to provide support, neglects or refuses to properly provide for and suitably maintain that spouse;
  3. having property within this state and the spouse being a resident of this state, so deserts or neglects or refuses to provide such support; or
  4. where a married person without that person’s fault lives separate and apart from that spouse.

See Utah Code 30-4-1

Post-Nuptial Agreement. A Post-Nuptial Agreement is a written and signed contract entered between spouses after they have married. Similar to a Prenuptial Agreement, a Post-Nuptial Agreement can set forth terms for division of property, payment of support and debts, and other financial-related terms. Often a Post-Nuptial Agreement is used to set forth the terms that would be in place in the event of a divorce. However, a Post-Nuptial Agreement may also be written in a way that sets forth the contractual terms that spouses agree to follow for their term of separation. An upside and a downside of a Post-Nuptial Agreement is that it is not filed with or enforceable by the court unless one spouse sues the other for enforcement of the terms, such as in a Divorce or a Temporary Separation action. Spouses can agree to provisions regarding their children, but an agreement for future custody and parent time issues is not generally enforceable. Because of the many legal implications and requirements for a Post-Nuptial Agreement, anyone considering using this method should consult with an experienced Divorce or Legal Separation Attorney prior to entering a Post-Nuptial Agreement.

There are many considerations and implications to be aware of in any type of Legal Separation. Even if you and your spouse are merely “taking a break,” it is important to know what rights and responsibilities you may have, and how to put yourself into the best position possible to protect your rights, children, income, and property. Make sure to contact Turner Law to schedule a free consultation with one of our experienced Divorce and Legal Separation Attorneys.


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