Getting Familiar with Missouri Legal Separation
The term "separation" is often used to refer to a couple living apart in their own home or at separate residences, without the need for any sort of legal action. It is possible to be separated from your spouse without either of you filing for any formal legal action. However, Missouri does have an actual legal definition of "separation," as referenced in the Missouri statutes about the legal annulment of marriage.
A legal separation can help you and your spouse formally and legally "buy some time" to see if it is possible to reconcile your issues or determine that ending your marriage is the right choice for both of you. The legal separation process is very similar to a divorce. However , just like the informal definition of separation, a legal separation does not terminate the marriage. A judge might grant a decree of separation instead of a decree of divorce if the issues are not irreconcilable.
A judge will consider several things when determining if awarding a decree of separation is appropriate for a given divorce case. These considerations may include:
If you and your spouse have filed for divorce but you think obtaining a legal separation is the more appropriate first step, talk to your attorney about the process and how it might benefit your case.
What is Divorce in Missouri
In Missouri, the process to dissolve a marriage is referred to as a "dissolution of marriage." It begins with the filing of a Petition for Dissolution of Marriage and service of the Petition on your spouse. Once your spouse is served, they have 30 days to file a Response. If both parties are in agreement on the terms of the divorce, an Uncontested Dissolution of Marriage can be filed. If the parties do not agree, they can go through mediation in an attempt to settle the case or give the other party a Statement of Property listing all assets and debts and what you think the property division should be. If the other party disagrees with the Statement of Property or the mediation does not work, the parties will proceed to trial where a Judge will decide the settlement terms of the divorce based on the evidence presented at trial.
In Missouri, the Divorce grounds are: irreconcilable difference that has caused the irretrievable breakdown of the marriage; when the husband or wife was absent for more than six months or the spouse or the child of either of them has been abandoned; adultery; imprisonment for more than a year; the husband or wife was physically or sexually abusive, beating, molestation, or rape; drug and alcohol abuse; insanity or altered mental state; or because the children of the marriage are at risk of physical or psychological abuse due to marital discord.
Differences Between Legal Separation vs Divorce
The Rules and Requirements:
For both legal separation and divorce in Missouri, the couple must have been married for at least 30 days before filing, and the courts must have jurisdiction over the amount and nature of the property to be divided as part of the process. At least one of the spouses must reside in Missouri at the time of filing.
The Process:
The legal separation process is similar to that of divorce, although there are elements that distinguish the two. After the petition is filed, each party will have the opportunity to respond. Both the petitioner and the respondent have an obligation to provide the necessary financial information and provide any documentation requested by the court. Both parties are permitted to secure legal representation and negotiate the terms of the legal separation agreement.
Once these elements are fulfilled, a judge will approve the separation agreement and file a decree of legal separation. The parties have the option of requesting an evidentiary hearing to hear disputes not settled through agreement. An evidentiary hearing is a court proceeding where each spouse presents information and arguments related to the disputed issues to a judge. An evidentiary hearing does not apply to every divorce case, but it may be necessary when parties cannot agree on key issues.
The Difference:
There are a number of key differences between legal separation and divorce. For example, a legal separation does not change the couple’s marital status. A divorce does. There are also differences in financial implications. For example, legal separation does not eliminate alimony or other payments that parties may be responsible for paying after a separation agreement is approved. It also does not automatically divide marital assets. This means a legal separation does not transfer property ownership from one spouse to the other the way a divorce decree does. Any property or debt transfer must be arranged by a legal document when a separation is decreed.
There are also some important differences from the social standpoint. Many people view divorced couples very differently than those who are legally separated. Depending on your circumstances, a legal separation can result in a more amicable process, especially if you and your husband or wife have joint businesses, children or other entities you need to regulate through uncontested legal processes.
Finances and Custody
When faced with the decision of pursuing a legal separation instead of a divorce, it’s important to fully understand how finances may be affected on either end of the equation. For instance, a legal separation generally grants the same rights regarding marital property division as a divorce. Therefore, from a financial standpoint, the only major difference between a divorce and a legal separation in Missouri is the fact that filing for legal separation does not allow you to remarry or find a new partner without first completing the legal divorce process. Both a legal separation and divorce provide for the legal allocation of property and debt, require the division of retirement accounts and work-related benefits apportioned to each spouse and determine child custody and child support arrangements, among other matters. When separating or divorcing, you will have to divide your marital property and debt through a marital settlement agreement or through a court order (if you and your spouse can’t reach an agreement). While the assets and debts would likely be allocated in a similar way during a legal separation or a divorce, a divorce is a permanent division of all property and debts while a legal separation is generally temporary. While a legal separation is not necessarily a requirement for obtaining a divorce, it might be a viable option depending on the needs of you or your spouse. Additionally, it may be a good option if you simply need to divide up shared property, while continuing to retain other benefits (such as insurance coverage). It’s essential that you and your spouse fully understand how applying for a legal separation versus filing for a divorce will affect matters regarding the division of assets and debts during the separation phase, as well as how a legal separation will impact these matters should you elect to obtain a divorce at a later date. It’s always best to contact a qualified and experienced divorce attorney for clarity into your unique circumstances.
Process and Paperworks
The legal process for both legal separation and divorce generally begins with the filing of a petition with the appropriate Circuit Court in Missouri. The parties must meet state requirements, both to qualify for either separation or divorce and in order for the court to exercise jurisdiction over the matter.
In general, Missouri courts have jurisdictions over divorce and legal separation matters if: (1) one of the parties has lived in the state for at least 90 days immediately prior to filing the Petition, and the … [remaining] conditions shall apply only if one party is a non-resident of this state; (2) the marriage was entered into in Missouri; (3) the cause for the action occurred in Missouri; or (4) either party meets the residency requirement (referred to as "the 180-day rule") and the basis for relief occurred in Missouri.
A legal separation in Missouri involves filing similar documentation to a divorce case except the request for dissolution of the marriage is not in the petition. As with a divorce, at the commencement of the legal separation, both the petitioner and the respondent have the opportunity to make requests and ask for the Court to issue orders relating to the custody and control of minor children, maintenance, property settling and state and federal income tax exemptions. The filing party also must provide certain specific information required by the court and provide a Certificate of Dissolution of Marriage and Divorce from the Department of Vital Records.
The primary difference between a legal separation and a divorce is that a legal separation does not allow one party to remarry whereas divorce terminates the marriage officially , allowing the individual to remarry. Further, when the court issues its orders following the legal separation, it is important to keep in mind that the orders are legally binding on the parties. In addition, like any other order issued by the court and as long as the court maintains jurisdiction over the matter, it can modify or enforce its orders for many years after the final decree is entered.
Unlike legal separation, a divorce decree typically requires a significant amount of documentation and proceeds more formally. The divorce process often begins with the filing of a petition requesting a dissolution of the marriage. In addition to the petition, documents that must be prepared and filed include the Certificate of Dissolution of Marriage and Divorce, a Civil Cover Sheet, the Statement of Property and Debt, and a Statement of Marital Disclosure. Parties must also provide the court copies of federal and state tax returns from the prior two years, documentation of all sources of income for both spouses (including W-2 Forms, K-1 Form if applicable and Form 1099), copies of all bank statements for six months, a list of all real estate, vehicles, bank accounts, retirement plans and any life insurance policies that are either owned or the beneficiary the petitioner. Other forms that must be filed include a Motion for Temporary Orders, Verified Statement Regarding Social Security Verification and a Certificate of Dissolution of Marriage and Divorce Record.
While it is possible to prepare the divorce paperwork without legal representation, it is nevertheless important to obtain the assistance of legal counsel to help ensure all necessary orders are issued and documented properly.
Pros and Cons: Choosing Wisely
There are several potential advantages and disadvantages to choosing legal separation over divorce and vice versa. For some people, legal separation may be less toxic; for others, the manipulation and control that can sometimes accompany this solution make it even more destructive than divorce. The factors that make one preferable to the other may vary from person to person, but there are certainly some things you should consider when making this choice.
Reconciliation
For some, a six-month separation may be the turning point they need to heal their marriage. A legal separation in Missouri does not end your marriage and some say it makes it easier to reconcile. This isn’t true for everyone, however. Others believe the distance makes it easier to move on and that the separation is a convenient way out for those who no longer have any desire to stay in a relationship.
Religion
Many people seek legal separation because their religion forbids divorce. (Catholics, for example, can always obtain an annulment, but divorce would not be acceptable.) For some, legal separation may be a way to maintain the status of their marriage, just not the terms.
Finances
Ending your marriage rather than separating may be financially more advantageous to some. In Missouri, the parties will not divide marital property if one spouse would receive more than half of it and the other less than half because the court may not grant a divorce if it is impossible to divide the property equally. Although legal separation is not the same as divorce, the court may still divide property into separate shares for each party. If you fear an inequitable division of the marital estate that could occur in a divorce, legal separation may be the way to go.
Consultation with an Attorney
Seeking legal advice is essential no matter the decision you’re making. The decision to end your marriage, via divorce or legal separation, is complex and will likely impact you for years to come. For this reason, speaking with a professional can help you better understand your situation and will give you a fresh perspective on the pros and cons of each alternative.
A lawyer isn’t there to tell you want to do. Rather, a good attorney is there to explain the options you have and how they relate to your lifestyle, marriage situation, and personal needs. He or she will also be able to advise you on the laws surrounding divorce proceedings in Missouri.
In most instances, two parties who are seeking legal advice will meet initially, with the attorney asking questions about the issues involved in their cases . For example, an individual could expect the attorney to ask about the following:
This information will ultimately help the attorney decide whether or not he or she can help the person, and if so, the lawyer will discuss the next steps in the process. Individuals will also learn how much it will cost to retain the services of the attorney, and what they can expect in terms of time investment.
Whether it’s over the phone or in person, the initial consult will prepare clients for what’s ahead. It will help them understand how to process information, what to expect from the process, and tips for taking care of themselves and their loved ones during this tough time.
When it comes to deciding whether legal separation or divorce is in your best interests, nothing compares to the guidance of a trained, experienced family law attorney.