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What is a Legal Separation?

On Behalf of | Jun 16, 2010 | Separation

A Legal Separation provides a means for you and your spouse to live separate financial lives while remaining legally married.  Legal Separation is commonly used in the following situations:

  • To obtain jurisdiction prior to the normal six month residency requirements for divorce.
  • It allows couples to separate with a formal agreement on finances, custody and parenting time issues to attempt a reconciliation and to decide if divorce is what they truly want.
  • It may provide a mechanism for retaining medical insurance which would be terminated by divorce.
  • To avoid conflict with religious beliefs that conflict with the concept of divorce, allowing the parties to live separately and retain their marital status.
  • To retain military benefits under the Uniformed Services Former Spouse Protection Act which requires 10 years of marriage.
  • To retain Social Security benefits which require 10 years of marriage
  • To enter into a Separation contract which can be incorporated into a Decree of Dissolution should divorce be necessary.

Separation, like dissolution, assumes that the parties have a valid marriage. See ORS 107.025. A legal separation merely suspends the effect of the marriage with regard to cohabitation. The parties are separated and their obligation to live together as husband and wife is suspended, at least for a given term, but the marriage itself is not affected.

At least one of the parties in a separation action must be a resident of or domiciled in Oregon when the suit is commenced. ORS 107.075(3). Unlike dissolution, no period of residence within the state is required before filing a suit for separation. ORS 107.075(2). The parties need not have been married in Oregon to establish jurisdiction here.

The grounds for a judgment of separation are set forth in the alternative in ORS 107.025:

(1) Irreconcilable differences between the parties have caused the irremediable breakdown of the marriage (only for permanent or unlimited separation);

(2) Irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage;

(3) The parties make and file with the court an agreement suspending for a period of at least one year their obligation to live together as husband and wife, and the court finds that agreement to be just and equitable; or

(4) Irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects a legal, financial, social, or religious interest.

A judgment of separation must state the duration of the separation. ORS 107.036(4). The duration may be unlimited, permanent, or for a specific period.

There is no 90-day wait before taking a judgment in a separation suit. Compare ORS 107.065 (dissolution).

When the court grants a separation judgment, it may also provide for the support of a party and children. ORS 107.105(1).

Within two years after a judgment of separation is entered, the court may convert a judgment of legal separation into a judgment of dissolution. Either party may file a motion for an order to show cause why a judgment of separation should not be converted to a judgment of dissolution. The notice must be served (in the manner for serving a summons) on the other party at least 30 days before the scheduled hearing. The court then may convert the judgment of separation into a judgment of dissolution of marriage. The other party may file a written consent to conversion and waive the hearing at any time before the hearing. ORS 107.465(1).

A couple may make a separation agreement (sometimes known as a marital settlement agreement or a property settlement agreement) between themselves, and that agreement can later be incorporated into the judgment. Separation agreements offer the separating couple an opportunity for greater flexibility and speed in the distribution of assets and obligations.

If you would like to learn more about Legal Separation call the Law Offices of Paul F. Sherman at (503) 223-8441 for expert legal advice or Contact Us for a Free Legal Separation consultation.