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:
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:
There are a number of disadvantages of a separate maintenance order:
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:
There are a number of disadvantages:
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.
Jennifer L. Neeley
Jennifer has helped thousands of people get divorced without fighting in court.
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