Kenneth Carroll: Is Legal Separation Recognized In Utah?

A legal separation in Utah is called “separate maintenance – a court will detail the monetary support guidelines and child custody issues and the division of marital property. Couples hoping for reconciliation may prefer this form of separation to divorce. Utah requires married couples with children under the age of 18 to attend classes to educate themselves on divorce, and couples with no children must still undergo a 90-day waiting period. Moreover, married couples filing for divorce must also attend a mediation session to resolve remaining disputes before going to trial. Filing for legal separation circumvents the class requirements and the 90-day waiting period. Parties are legally separated only when a court enters a decree of separate maintenance. To obtain a decree of separate maintenance in Utah, the parties go through an action like a divorce.

Separate maintenance divides property, awards custody of children, and provides for child support and alimony, but does so on a temporary basis; the decree of separate maintenance does not end the marriage. Alimony under separate maintenance is more common than under a divorce decree because the parties are still married, and the law requires spouses to support one another. Once the separation occurs, the separated couple may file for a divorce, which is independent of the legal separation. Court and attorney fees for legal separation and divorce are equal, but couples seeking a divorce after a separation will end up paying the same amount twice. Couples seeking legal separation must resolve issues similar to that of divorce, including child custody and visitation, dividing up property and child support, and paying debts.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Couples can obtain a legal separation on a few different grounds, which include one party having deserted or left the other without reason or, although able, neglects or refuses to provide for the other spouse. One can also seek legal separation when the other is imprisoned for a period exceeding one year, preventing that incarcerated party from providing for the spouse. Additionally, legal separation is obtainable when spouses live separately but claim no grievance.

In order to be eligible for legal separation, both spouses must have been Utah residents for the past 90 days

Twenty days after the paperwork petitioning the court for a legal separation has been filed, the respondent receives a summons to appear in court. In court, the petitioner explains the grounds for the separation, and the judge generally grants a decree of legal separation.

Legal separation is a difficult, emotional topic. For this and many other reasons, you should hire a Utah legal separation attorney to help you. It’s especially important to take practical legal steps and use the proper legal separation agreement forms to protect yourself and your children when you’re dealing with an emotionally charged situation. A separation agreement spells out the terms agreed on by the separated couple for handling important matters, such as property division, child custody and child support, while living apart. When filed in family law court, a separation agreement can be enforced with the court’s contempt power if not obeyed. Getting a legal separation doesn’t change the fact that the couple remains married under the eyes of the law. However, if the couple later decides to divorce, a divorce court will often incorporate the terms of the separation agreement into the final divorce decree.

How Do You Get a Legal Separation?

The divorce law in your state, which varies by state, defines what is required for getting a legal separation. If you’ve been wondering “how can I get a legal separation”, US Legal Forms offers state-specific legal separation forms that can be easily completed from your own computer. You don’t need to be an expert in the divorce law of your state to use our forms, simply fill in the blanks according to the terms you’ve agreed on. Many states allow the papers to be filed by the separated couple in family law court. You will first need to sit down with your spouse and discuss how you will address important issues while separated, such as:
• Property division, including who will use shared vehicles and resides in the marital residence.
• Support and custody of a child or children. State child support guidelines may be used as a reference.
• A legal separation agreement can include terms for spousal support.
• Payment of bills, including insurance and uncovered medical expenses.
• Payment of income taxes and assignment of deductions.

There Are Residency Requirements in Utah

There are residency requirements to get a legal separation in the state but they are lenient. To be eligible for a legal separation in Utah, both spouses must have been living in the state for the past 90 days. Twenty days after the filing the petition to the court for a legal separation, the respondent will receive a summons to appear in court. Once in court, the petitioner will have the opportunity to explain the grounds for the separation. At this point the judge generally grants a decree of legal separation.

In a legal separation, you are still responsible for the debts of your spouse even though you are no longer living together; in a legal separation you are still liable for spousal debts. You are also responsible for legal issues they may be involved in. A legal separation decree would address agreement on these debts. If a spouse neglects to pay certain joint marital debts however, creditors can still come after you. If legal documents are not filed detailing your separation agreement, this is not considered being “legally separated” and how you will share your marital assets, debts and other costs can likely cause problems in the future, which could potentially lead to complicated litigation.

Unlike in a divorce, there is no waiting period for a decree of separate maintenance. If there are no complications a legal separation could be complete in a few weeks. Choosing to end a marriage can be one of the most difficult decisions a couple can make. After all, when a couple has difficulties in their relationship, tensions and emotions can be high and the options available to you to make necessary decisions can be confusing. While you may have decided that your relationship is definitely not working out as you expected, take a little time to educate yourself about what your possible next steps should be.

An annulment is a formal declaration from the court that goes beyond ending the marriage by stating that the marriage never occurred. An annulment is very difficult to obtain because you must prove that under Utah law, the marriage was never valid. There are several instances where this may be shown. For instance, your marriage is not valid if you can show that your spouse was already married to someone else when your marriage occurred. In that case, you would need to show that your spouse lied to you or withheld information about their marital status. Demonstrating this situation would show that if you had known, you would never have married.

Divorce is the second option. A divorce decree will terminate the marriage. You may also have other issues addressed by the courts such as:
• Custody
• Visitation
• Child support
• Property division
• Alimony
• Pensions
A third option is a legal separation. In Utah, this is referred to as “separate maintenance”. With this option, you technically will still be married but will reside in remain legally married but live independently from your spouse. Separation can occur informally, without the intervention of the courts, or legally. In separate maintenance, a judge will issue an order granting the separation and legally changing your marital status. If you and your spouse are now living apart but have not taken the steps to file for a separate maintenance petition, you will not have this “legally separated” status. Perhaps you are not ready to take the step to file for separate maintenance or divorce but need help with issues such as child support, alimony (support for spouse), child custody and visitation. You can get help with these issues through the courts separately without filing for divorce or separate maintenance.

The primary difference between divorce and being legally separated in Utah is that are still married, even though, you have a separate maintenance decree from the court. With a divorce decree, the marriage is ended. While both processes are similar, it is the outcomes that are different. Under separate maintenance, you live separately but remain legally married to your spouse. The wife may not take her maiden or former name. Your rights and duties to one another will be laid out in a Decree of Legal Separation. Utah laws mandate that spouses care for each other and their children.

This temporary order addresses issues such as custody and child support, alimony, the division of property and the repayment of any debts. These orders remain valid for one year from the date of the hearing. If you should decide later on to divorce, you will need to file a separate petition to divorce. If you decide the legal separation is the most appropriate step for you, you will need to file a petition in your Superior or Family Division Court. However, realize that this is not necessarily the first step to getting a divorce. While processes are similar in cost and length of time (8-10 months on average), they are different.
There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:

• Health care/other benefits: Legal separation allows for the retention of health care and other benefits including certain social security benefits that terminate with a divorce.
• Marital status: Legal separation allows you to retain your marital status, meaning that you’re not free to marry another; once you’re divorced, you can remarry.
• Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren’t considered next of kin.
• Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
• Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
• Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.
Similarities Between Legal separation and Divorce
In both divorce proceedings and in the proceedings for legal separation, the court decides the following:
• Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a “motion pending litigation”).
• Child custody
• Child visitation
• Property division (both legal separation and divorce property division is based on the couple’s situation and how it relates to the property)

Living Separately and Impact on Property Division

Circumstances may arise that lead to couples living apart with no intent to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.

Trial Separation

Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and therefore, likely marital property.

Permanent Separation

Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children’s care. Because each state has its own laws regarding property and debt division, it’s important to check the laws where you live. These determinations can become quite convoluted due to the changing of the couple’s circumstances, so it’s a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation.

Legal Separation Attorney Free Consultation

When you need to get divorced or a legal separation in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.