When a person decides to file for divorce in Missouri, state law does not require them to be separated from their spouse. That said, people often start the legal process for a divorce after they have separated. Divorce brings a complete end to a marriage relationship. Not everyone wants or needs to end the marriage relationship altogether, so Missouri provides another procedure known as “legal separation.” This allows spouses to divide up the marital property, make formal arrangements for child custody and child support if applicable, and deal with other issues found in divorce cases, but without formally ending the marriage. A family attorney with experience in both divorce and legal separation in Missouri can help you understand your options with regard to both types of proceeding.
Legal separation in Missouri involves more than simply living apart from one another. It involves obtaining a judgment of legal separation from a court. This judgment must address most of the issues found in divorce cases, such as:
The parties are still married to one another, legally speaking, but their property and lives are separate.
Why might someone choose separation instead of divorce? Legal separation often functions as an intermediate step between marriage and divorce. It might offer advantages over divorce in certain circumstances. It also lacks the finality of divorce.
Missouri law states that a court can grant a divorce for an “irretrievably broken” marriage, after it finds that there is “no reasonable likelihood that the marriage can be preserved.” Legal separation is available, according to state law, when there is “a reasonable likelihood that the marriage can be preserved.”
Unlike divorce, separation can be reversed. A couple can ask the court that granted their legal separation to set the judgment aside. This fully restores the legal marriage relationship.
Some people may opt for separation in preparation for divorce, while still allowing for the possibility of reconciliation. A married couple can use legal separation to resolve issues involving children and property. After living separately for some amount of time, they may decide to reconcile, or to file for divorce.
A divorce after legal separation might be relatively straightforward, since the separation would have resolved many of the issues that usually require court involvement. In fact, legal separation in Missouri provides a process specifically for converting to a divorce. It becomes available a minimum of ninety days after a court grants a judgment of separation.
In some situations, a couple may want to separate, but stay officially married for financial reasons. For example, some benefits are only available to married couples. This is best evaluated on a case-by-case basis, as some types of benefit programs do not consider people to be married after a legal separation.
Finally, people may prefer separation to divorce for cultural or religious reasons. People who are legally separated cannot remarry, but they can live separately from their spouses.
The procedure for obtaining a judgment of legal separation is almost identical to the divorce process. It begins with a petition for legal separation, filed in the county where one or both spouses live. One or both spouses must meet Missouri’s residency requirements, meaning they must have been a Missouri resident for at least ninety days. While a person seeking a divorce must state that the marriage is “irretrievably broken” and cannot be preserved, someone seeking separation should plead that there is a possibility of reconciliation.
Just to clear up a fairly common misconception, legal separation is not necessarily less expensive than divorce. The total cost will depend on many factors, just like in a divorce case, including:
If the spouses can find common ground on the important issues, they can present a marital separation agreement to the court. If they cannot reach an agreement, they may have to litigate the issues they cannot resolve on their own. A legal separation case that becomes too acrimonious can end up turning into a divorce.
Mark A. Wortman is a Kansas City family law attorney who has dedicated his practice exclusively to helping people through some of the most difficult times they may experience. He can assist with all aspects of legal separation in Missouri. We welcome you to contact our law office to schedule a consultation, either through our website or at (816) 523-6100.