Legal Separation and Utah Divorce

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One frequently asked question I get from time to time is whether there is any requirement, benefit, or advantage to filing for a legal separation before one files for divorce. Due to the frequency of this question and the nuances of each unique couple, it's worth dedicating a blog post exploring this question.

Let’s dive right in. First, in Utah there is no requirement that a person file for or receive a legal separation before one can file for divorce. Legal separations in Utah are purely elective. When it comes to “legal separations,” Utah residents have two options from which to choose: First, one can file for a temporary separation (in accordance with Utah Code 30-3-4.5). Alternatively, one can file an action for separate maintenance (in accordance with Utah Code 30-4-1).

To understand these actions and what they do, it’s a good idea to review what divorce is. Essentially, divorce is more than the legal dissolution of a marriage by a court. It is the process of terminating a marital union, canceling or reorganizing legal duties and responsibilities among the two parties, and dissolving the bonds of matrimony under rule of law.

Below, I will explore the two types of legal separation in Utah and discuss some advantages and disadvantages of each.

A. Separate Maintenance

An action for Separate Maintenance under Utah Code Ann. 30-4-1 provides one spouse the ability to seek alimony, property, and debt management, health care insurance, housing, child support, child custody, and parent-time, without initiating a divorce proceeding. 

To file an action for separation maintenance, your spouse must be a resident of Utah and you must have grounds for such an action. Grounds for separate maintenance include the following:

• Your spouse has abandoned you without a valid reason;
• Your spouse is capable of supporting you but fails to do so;
• You are living separately from your spouse through no fault of your own; or,
• Your spouse has been incarcerated for one year or longer without making any provisions for your support. 
• Additionally, as a resident of Utah, you may also file for separate maintenance if your spouse possesses property in Utah but does not provide support to you.

The legal proceedings involved in a separate maintenance case are similar to those of a divorce; however, the petition for separate maintenance can be filed in any county where either spouse is present. 

Separate Maintenance orders are not temporary, but either party can file a motion to convert a separate maintenance order into a divorce at any time. Furthermore, a separate maintenance order will cease upon the death of either spouse.  Any obligations outlined in the order will be terminated if both parties can demonstrate voluntary and permanent reconciliation.

Advantages of a separate maintenance order include the following:

• Allowing a spouse the ability to continue receiving health insurance benefits under the spouse’s other plan.
• The couple remains legally married, which may be preferable for religious reasons.
• It allows the couple time and opportunity to fully explore reconciliation.
• Certain social security benefits may require a marriage to last at least ten years so that the other spouse’s work history can be used to calculate benefits for the other spouse. 

There are a number of disadvantages of a separate maintenance order: 

• The couple remains legally married.
• Both spouses will continue to have financial ties and obligations to the other, which can impact personal independence and restrict financial abilities and decisions.
• While a legal separation order addresses certain aspects of the marriage, it does not provide a complete dissolution of the marital relationship, including ultimate disposition of property division, remarriage rights, or the ability to file taxes jointly.
• A separation without the finality of divorce can impose emotional and psychological strain due to the ongoing marital status and uncertainty regarding the future of the relationship. This is especially true where either party can move to convert the legal separation into a divorce at any time.
• Because either party can convert a legal separation to a divorce, if both parties do not consent to the action, it could be a waste of time, money, and professional expertise needed to secure these legal court orders.
• A legal separation sends you to straight into litigation, which is costly, adversarial, and unnecessary for most divorcing couples.

B. Temporary Separation

A temporary separation is elective action a spouse may take prior to initiating a divorce. See Utah Code 30-3-4.5. This may be the case if they need a court order that establishes temporary arrangements for alimony, property, and debt management, health care insurance, housing, child support, child custody, and parent-time, but feel uncertain about proceeding with a divorce.

Temporary separation orders are only valid for a period of one year (from the date of the hearing), unless the case is dismissed earlier. If one of the spouses files a petition for divorce while the temporary separation order is in effect, the temporary separation order will remain in force until the divorce proceedings are finalized. 

Once a petition for temporary separation is filed and served, both spouses are required to attend a divorce orientation course if there are minor children involved. To seek a temporary separation order, both spouses must be lawfully married and have resided in Utah for at least 90 days.

I see little advantage to temporary separation orders. Indeed, they don’t seem to be sought after or commonly used. But, there are some advantages:

• If one or both of the parties needs a court order that establishes certain provisions, obligations, and/or duties, a temporary separation order is one way to achieve that.
• If the parties are unsure whether a divorce is desired, a temporary separation allows spouses to take time apart to reflect on their marriage, evaluate their feelings, and assess whether divorce is really the best course of action.
• A period of separation can create space for communication, counseling, and potential reconciliation.

There are a number of disadvantages:

• The temporary separation is only good for 12 months from the date of hearing.
• Temporary separation sets you out on the costly, adversarial litigation path from the very start.
• Temporary separations often require additional financial expenses for the additional legal procedures leading to additional attorney fees, and, potentially, additional filing fees.
• They prolong the process by extending the overall process, causing continued uncertainty and stress for both parties.
• Increased conflict may occur as a result of the adversarial process as well as the new challenges and conflicts that the period of separation may introduce to the couple. 

Conclusion

Occasionally legal separations help divorcing couples achieve specific goals. But, they are not required in Utah and, all in all, getting one may create more challenges than divorce alone. If you are exploring divorce but you hope to minimize trauma and conflict, protect your children, while utilizing a fair and transparent process, consider a non-court divorce or a Collaborative divorce. To learn more about Non-Court divorce or Collaborative divorce, visit Utah Divorce Coaching & Consulting, LLC. 
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