What's the Difference Between Legal Separation and Divorce?
What does divorce look like in Oregon?
In Oregon, the legal and more formal term for divorce is “dissolution of marriage,” which begins when one spouse in a marriage files a petition for dissolution. The spouse who files the petition is the petitioner, and the other spouse is the respondent. Oregon is a “no-fault divorce” state, so neither spouse needs to prove wrongdoing in the marriage in order to file a petition for dissolution.
Once a petition has been filed and responded to by both parties (and both parties have ideally hired a family law attorney), the process of dissolution, including division of property and determination of spousal or child support, can continue.
Oftentimes, two attorneys can negotiate a settlement on the division of property for their respective clients, but sometimes the court will be required to determine how to divide the property. Spousal support is another element of the dissolution that will be determined by a judge, and they may order one spouse to pay the other a specified amount each month.
Once all affairs have been settled, the dissolution is finalized by the signature of a judge, and the two parties are officially divorced. Once divorced, some changes occur for both parties, like filing separate, individual tax returns and being solely responsible for their own designated debt.
What is a legal separation?
Separation and divorce are often confused by the majority of the population because a legal separation looks almost the same as a divorce. Both parties are entitled to most of the same relief as a divorce, like the division of assets and spousal support.
The key difference between a legal separation and a legal divorce is that, in a legal separation, neither party is able to be remarried, because the existing marriage is not officially dissolved.
It’s important to note that separation, in this case, is still a legal process, and simply choosing to live apart or not interact is not the same as a legal separation. A separation without legal paperwork can be complicated, for a few key reasons.
Mainly, although you’re living separately from your spouse, you could still be responsible for their debts, and it can be harder to monitor if debts and other bills are being paid as they should, which could add significant financial risk and liability to you. Additionally, new debts acquired while the marriage is still intact will be subject to division of property if you proceed with a divorce eventually.
Also, your marriage continues, and that could mean that you will be ordered to pay a longer duration of spousal support. So, if you were married to someone for 10 years and then living apart for another 2, in the eyes of the court, that would be viewed as a 12-year marriage and may play a role in spousal support in the event of a formal divorce.
Why you should get a legal divorce instead of legal separation
Every case of divorce or separation is unique, so it’s hard to say you should always pick divorce over legal separation without knowing anything about your individual situation. But, we find ourselves recommending divorce over legal separation the majority of the time to our clients, for a few reasons.
The main reason is that you’re not able to get remarried if you’re legally separated in the State of Oregon, and many people who decide to get divorced plan to get married to another partner at some point in the future. When you opt for a legal separation, this does not dissolve your marriage in the eyes of the state, so you will not be allowed to remarry.
Another reason is that unless the legal separation terms are made final, and that is clear to everyone, a subsequent divorce could involve a renegotiation and resolution of all issues. It is key to have an attorney draft your legal separation paperwork to avoid surprises.
We like to think of divorce as the default recommendation, and, if there’s a really good reason to opt for a legal separation instead, we’ll always do what’s best for our client. There are some reasons why a legal separation may be the better option for certain individuals, like a religious requirement where divorce is discouraged or disallowed, needing to keep insurance benefits and the insurer allows it (this is very rare), or wanting to revisit the relationship later. Some couples may also opt for a legal separation before committing to a divorce because the case can be converted into a legal divorce within two years.
If you’re unsure about which path is best for you, it’s best to find an attorney with significant experience in family law who you trust to help you through this important decision and process.
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The importance of having an experienced family law attorney in your separation or divorce
Navigating the world of legal separation or divorce can be challenging for an untrained individual, so, to ensure that you come out of your legal separation or divorce in the best possible situation, it’s critical you work with a family law attorney.
Have more questions about whether a legal separation or divorce is best for you? Reach out to the team at DBMA Family Law Group, and let us be your advocates and guides through whatever path you choose.