Wayne County Attorney Explains Legal Separation Versus Divorce

When conflicts in their relationship lead a married couple in NE Ohio to make a decision to live apart, ending the marriage through a divorce or dissolution is not always the route people choose. There are many reasons that a couple might decide to pursue a legal separation instead of a divorce. Common reasons people give for electing to pursue a separation instead of a divorce include:

  • Strong personal or religious beliefs that do not favor divorce or dissolution.
  • Avoiding the loss of employer-sponsored medical insurance coverage for a spouse.
  • Not being able to meet the Ohio residency requirements for obtaining a divorce.

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What Is a Legal Separation?

Couples in Northeast Ohio who obtain a legal separation remain married to each other. An order of legal separation or a separation agreement negotiated and executed by the parties gives each spouse the right to live apart from the other spouse in much the same manner as someone whose marriage has been terminated by divorce or dissolution. The primary difference is that because couples who are legally separated are still married to each other, they are not free to enter into another marriage without first obtaining a divorce.

Obtaining a Legal Separation in NE Ohio

The least adversarial procedure that a married couple can follow to separate is the separation agreement. The agreement is negotiated between the parties and includes provisions for the settlement of child custody, child support, spousal support, distribution of marital and separate property, and other issues that the parties need to resolve in order to live separately and apart.

Unlike a divorce or legal separation, a separation agreement does not require a court proceeding or court intervention except to enforce its terms if one of the parties does not comply. Enforcement of a separation agreement is a procedure similar to enforcement of any contract or written agreement.

A legal separation is a lawsuit commenced by one of the parties to a marriage. Similar to a divorce proceeding, a complaint in an action for a legal separation is filed in the County Domestic Relations Division. The complaint must state at least one of the grounds listed in section 3105.17 of the Ohio Revised Code upon which the court may grant a legal separation. Some of the grounds include:

  • Absence of the non-filing party for a period of one year
  • Adultery
  • Extreme cruelty
  • Gross neglect of duty
  • Fraud
  • Habitual drunkenness
  • Incompatibility

The law also recognizes living separate and apart from each other as grounds for a legal separation or divorce. This could apply to couples who separated pursuant to the terms of a separation agreement.

How Long Do You Have to be Separated to Get a Divorce in Ohio?

Effects of Legal Separation

A judgment granting a legal separation does not terminate or dissolve the marriage. It does, however, give the parties the right to live separate and apart, free from the obligations normally associated with marriage, except as contained in the judgment.

If the parties submit a separation agreement to the court in a legal separation proceeding, the judge hearing the case will usually incorporate the agreement and its terms into the judgment of legal separation. If there is no separation agreement, the judge will, after hearing the evidence submitted by the parties, include provisions in the judgment of separation for child custody, parenting time, child and spousal support, division of marital property, and other financial issues similar to those dealt with by a court in a divorce action.

Converting a Legal Separation to a Divorce

Either party to a legal separation proceeding or separation agreement in Ohio may petition the court to convert the legal separation into a divorce or dissolution. A separation agreement without a judgment of legal separation can also become the basis for the settlement of the child custody, parenting, and financial issues in a subsequent action for a divorce or dissolution.

Modification of a Judgment of Legal Separation

If the Ohio Court of common pleas retains jurisdiction over the matter, it can modify the child support and spousal support provisions of a legal separation or separation agreement. It also has jurisdiction to modify orders pertaining to parental rights and parenting time as long as the children remain within the applicable county.

If you think a legal separation is an option for you, contact the family law attorneys at Erb Legal LLC by calling (330) 446-3606. From our office in Northeast Ohio, we serve clients in Brunswick, Wadsworth, Rittman, Ravenna, Akron, Burbank, Wooster, and others.