Legal Separation

Legal Separations

For people not wanting a full divorce (or dissolution as we call it in Montana) there is another option. The law allows you to obtain a legal separation instead. The differences are actually quite small, and in general this isn’t much of a solution for my clients. But, the option exists and people should be aware of it. Particularly for some religious faiths, this can provide an important alternative that makes the most sense in certain situations. If you find yourself wanting a legal separation instead of a divorce, here are some things to think about.

Legal Separations in Montana are governed by Section 40-4-104(2) which allows a District Court to enter a decree of legal separation (instead of a decree of dissolution) if one or both parties request it, and neither party objects. The requirements for getting a legal separation are the same as those for getting a divorce. Specifically, it is available if:

(a) the court finds that one of the parties, at the time the action was commenced, was domiciled in this state, as provided in 25-2-118, or was stationed in this state while a member of the armed services and that the domicile or military presence has been maintained for 90 days preceding the filing of the action;

(b) the court finds that the marriage is irretrievably broken, which findings must be supported by evidence:

(i) that the parties have lived separate and apart for a period of more than 180 days preceding the commencement of this proceeding; or

(ii) that there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage;

 (c) the court finds that the conciliation provisions of the Montana Conciliation Law and of 40-4-107 either do not apply or have been met; and

(d) to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for parenting, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property.

 

Following a legal separation, once the parties have been living separate and apart for six months, either party may ask to have the separation converted into a divorce – which essentially happens automatically upon that request. If the parties have only received a legal separation, they may not marry anyone else, but most of the other requirements of marriage are removed by the decree of separation.

Because of the ease with which a separation is converted into a divorce, it can be an attractive option for people unsure about the divorce process. However, remember that in order to get the separation you have to go through all the different steps that a divorce requires. And then six months later, either party can have it converted into a divorce. While it may seem like a less permanent step, often it just means ripping the band-aid off slowly instead of more quickly.