Legal Separation or Divorce? 6 Questions Washington Couples Should Consider First

The short version, if you only read this part:

Legal separation is a court case, not an agreement between spouses. It has its own petition, its own filings and its own decree.
It settles nearly everything a divorce settles, including parenting plans, child support and how property and debts get split. What it does not do is end the marriage.
Moving into a separate apartment is not a legal separation. Two spouses can live in different homes for years without a court knowing anything about it.
Under RCW 26.09.150, either spouse can ask the court to convert a separation decree into a divorce once six months have passed. The statute says the court shall convert it.
Because separation keeps you married, you cannot remarry until it converts.
Washington does not require anyone to separate before divorcing.
If you are staying married for a benefit, confirm that benefit with the plan itself before deciding anything.

Most couples who are looking this up have got as far as separate bedrooms or separate addresses, and what they want to know is whether the paperwork for a separation is going to be lighter than the paperwork for a divorce. It isn’t.

The petition is a different form, FL Divorce 203 instead of 201, but it gets filed at the same superior court window, it has to be served on your spouse in the usual way, and in Pierce County the clerk is going to charge you $364 whichever of the two you hand over. A separation decree is a final order that would have to be appealed if either of you disliked it, and property that has been divided in it is not going to be redivided later just because the marriage was eventually dissolved.

So if the two of you have been leaning toward separation because it seemed lighter, you should know that what that work buys is every order a divorce would have given you, less the order that ends the marriage.

The Petition Asks When Your Marital Community Ended, And Moving Out Can Be The Answer

Page two of FL Divorce 203 has a box that most people fill in without reading it twice. It asks the court to find that the marital community ended on a date, and it offers you a set of reasons to tick: the date the petition is filed, or an earlier date, which might be when one of you moved to a separate household, or when you separated your assets and debts, or when you agreed the marriage was over.

That date is going to be used later, because Washington is a community property state, and under RCW 26.16.140, once spouses are living separate and apart, their respective earnings and accumulations become the separate property of each. The Washington Supreme Court had to decide in Aetna Life Insurance Co. v. Bunt, 110 Wn.2d 368 (1988), whether a wife who had been separated from her husband for eleven months, with a divorce on file, was entitled to a community share of his life insurance when he died before the case finished. The court’s answer was that a marriage which is defunct for all practical purposes has no community left in it, so nothing earned after the real split is community property, and that neither a final decree nor even a pending case is required for the statute to apply.

The articles which tell you that moving out changes nothing have missed this. Living apart does not give you a legal separation, and it does not settle a single question about the kids or the mortgage, but if the marriage is over in fact, then every paycheck after that date may be yours alone and every paycheck of your spouse’s may be theirs, which will matter a great deal to whichever of you is expecting a year-end bonus.

The catch is that the courts have been strict about what “over in fact” means. In In re Marriage of Nuss, 65 Wn. App. 334 (1992), a trial judge had found the marriage defunct because the couple were living apart, dating each other, and going to counseling together, which the judge read as proof they were no longer together. The Court of Appeals reversed him. Those were exactly the facts, it said, which showed the marriage was not yet defunct, because a couple who are trying to reconcile are still demonstrating a will to union. The Supreme Court put it in Seizer v. Sessions, 132 Wn.2d 642 (1997), as a requirement that the conduct of both spouses show the marriage has been given up, so a decision that one of you has reached privately is not going to be enough on its own.

Two Spouses Can Sign The Same Petition Meaning Opposite Things

Separation cases produce their surprises at exactly that point, and most of them are personal surprises rather than legal ones.

Suppose a husband has been treating the separation as a pause. He would have said, if anyone had asked him, that things might get put back together over the next year or two, and he chose separation over divorce for that reason. His wife, meanwhile, had decided months earlier that the marriage was finished and was choosing separation because her parents would not have taken the word divorce well, or because of her church, or because she was not ready to have that conversation. Both of them are signing the same FL Divorce 203, and the form is never going to ask either of them what they meant by it.

Whether the marriage is being paused or being ended is a thing the two of you should have said out loud to each other before the decree is entered, because it changes what each of you will agree to. A spouse who believes the separation is temporary will accept property language and support figures that a spouse who knows it is permanent would have fought over, and a decree which has been entered is not going to be reopened because one of you had misread the other.

The legal separation page that Dellino Law legal separation Seattle describes the choice as a step toward reconciliation for some people and a path to independence for others, which is an honest way of putting the fork. If you and your spouse would each pick a different half of that sentence, that should be found out while the terms are being negotiated and not eighteen months later when one of you moves to convert.

What Should Have Been Gathered Before Anyone Agrees To A Number

The money conversation usually starts in the first month after the second lease is signed, when the mortgage is being paid as before and a rent, a second set of utilities and a deposit that came out of savings have been added on top of it.

Before either spouse agrees to who is carrying what, the statements ought to be on the table rather than remembered. That means recent statements for every account, joint and individual, the balances and terms on each credit card, the mortgage and any equity line, the paperwork for car, student and personal loans, retirement account statements, and two or three years of tax returns. If one spouse has been handling the money for the whole marriage, which is common, that spouse is starting the conversation knowing things the other will need weeks to catch up on, and the catch-up has to happen before a figure gets signed.

A family business, a rental, a large retirement balance or a wide gap in incomes will turn what looked like a simple agreement into something that needs work, and if there is a bonus or a stock vesting on either side, the defunct-marriage date above is going to decide whose it is.

Six Months After The Decree Either Spouse Can Have It Converted, And The Court Has No Discretion

Choosing separation does not lock anyone into it. RCW 26.09.150(2)(a) provides that no earlier than six months after a decree of legal separation is entered, on the motion of either party, the court shall convert it into a decree of dissolution. The word the legislature chose was shall, and it could have written may. The other spouse is served, a hearing is set, and if the moving spouse alleges the marriage is irretrievably broken, the conversion gets entered. There is nothing for the other side to contest, and the property division, parenting plan and support orders from the separation carry over unchanged, because the court is dissolving the marriage and not reopening the case.

Anyone who is negotiating a separation should have been told that at the start, because the terms you agree to are not provisional. There is a good chance they become the terms of your divorce with a different caption on the first page, so the property language, the maintenance figure and the parenting provisions deserve the attention you would have given them if this had been the final case, since it may well become one.

And while the decree stands, you are married. Remarrying is not available to either of you until the conversion is entered, and anyone who is separating with a new relationship somewhere in the picture ought to have that on the table early.

A Parenting Plan Gets Tested On School Days, Not Holidays

The big questions in a parenting plan, where the children live and how the holidays are split, get settled first, and they are rarely what brings a couple back to court. The routine questions are: who collects a child from practice when it runs past one parent’s shift, what happens when school is closed and both parents are working, where the medication lives and what is done when it is at the wrong house.

A Washington separation case can carry a full parenting plan and a child support order under chapter 26.09 RCW, exactly as a divorce can, and since those orders will survive a conversion, the plan should have been written for the week it will be lived in and not for the paper it is filed on. A plan which has been written that way will not predict everything, though it does reduce how often two people who have stopped living together are made to negotiate something small.

Check The Benefit With The Plan Before You Stay Married For It

People choose separation over divorce because they believe staying married preserves something, and the benefit is most often health coverage, though a tax position, a pension or a survivor benefit comes up as well.

Each of those should have been confirmed with the plan administrator or the provider before the decision was built on it. Employer health plans define their own qualifying events, and some of them treat a legal separation as one even though the marriage continues, so the answer is in your plan’s documents and not in an article or in what a friend’s separation looked like in another state. That care should be extended to agreeing to any figure while worn out. A number that felt reasonable at the end of a long argument can look worse once both spouses have read the statements, and if there is a business in the picture, a serious income gap, a dispute about the children or any concern about safety, that is the point at which individual advice is worth paying for.

Washington Does Not Make Anyone Separate First

Nothing in chapter 26.09 requires a legal separation before a divorce can be filed, and a couple who know they want the marriage ended can file FL Divorce 201 on day one.

For some couples, staying legally married while firm financial and parenting orders are put in place is the right answer, and they can usually say why in a sentence. Where the reason cannot be said in a sentence, what is being bought is time, and time is sometimes worth buying when there are children in the house or a spouse who needs to catch up to where the other one has been for a year.

This article provides general information about Washington family law and is not legal advice for any individual situation.