The decision to separate rather than divorce is not a simpler decision, only an alternative. No matter what reasons you have for wanting to separate, weigh your options carefully and consider consulting with a qualified divorce attorney first. There are important distinctions that need to be kept in mind when you move forward with legal separation.
Legal Separation vs. Divorce
Legal separation and divorce follow very similar processes. They both financially separate the two spouses, and have orders for custody, placement, and child support. However, while separation leaves the marriage intact, a divorce completely dissolves the legal relationship between the two spouses.
In order to file for legal separation, one spouse is required to have been living in a Wisconsin county for 30 days. However, in a divorce, one party must be a legal resident of WI which is established by residing in WI for 6 months. In either situation, to file in a specific WI county, a spouse needs to have been living in that county for 30 days. Also similar to divorce, there is a 120 day waiting period between the time the action is filed and the final hearing.
Legal Separation vs. Physical Separation
Legal and physical separation are often confused. Legal separation is a process that goes through the Wisconsin court system that results in a change in the marital status of both spouses. This means that, for purposes of marital property, accruing debt, and filing taxes, the couple is no longer considered to be married.
Physical separation does not change a couples legal status, it is simply the act of moving out of the family home or into separate parts of the family home. This can be done without filing with the court system, and can be handled privately if the spouses can come to an amicable agreement. Physical separation is usually a precursor to legal separation, but this is not always the case.
Legal Separation Judgment Reversal or Conversion
In the event that a legally separated couple reconciles and makes the decision to reverse the separation judgment, it is possible to reverse a legal separation and return to being a joint status couple.
In order to reverse a legal separation, you and your spouse must both agree to the reversal, and obtain a copy of the original Order of Separation if you do not already have one. If the judge has not entered the order yet, then you and your spouse are not legally separated at this time and cannot file for a reversal of the order.
At this time, you or your attorney will draft a Motion to Vacate Order of Legal Separation. Before doing this, be sure to review your local jurisdictions' rules for motions. You and your spouse will also need to draft an Order to Vacate Order of Legal Separation.
You will then file the Motion and Order to Vacate at the same court that you had originally filed for separation. A copy of the Order of Legal Separation will need to be included, and a filing fee will need to be paid before your motion will be accepted.
On the other hand, if a couple decides that they want a divorce after being granted a legal separation, this can be done one of two ways. The first option would have the couple convert their legal separation into a divorce through a joint stipulation, which is a more simple way that does not require any additional wait time.
The second option is useful when only one spouse wants to convert the separation into a divorce. That spouse would then file a petition for conversion. It should be mentioned that when only one spouse wants to pursue conversion, the paperwork cannot be filed until at least one year after the legal separation was granted.
Dos And Don'ts Of Marital Separation
When going through a legal separation, it can be difficult to think clearly. The process can cause a lot of stress on the couple as a whole and as individuals. It is important to keep in mind that, while you go through the separation, there are steps that need to be taken, and there are definitive things that you should avoid.
Do:
- Get familiar with the marital finances.
- Establish credit by obtaining credit cards in your own name.
- Close any joint credit card accounts that you currently hold with your spouse.
- Consult a family law attorney to have a legally binding separation agreement drafted.
- Keep copies of all personal and legal documents, as well as financial documents regarding property, debt, and income.
Don’t:
- As you are still legally married to your spouse, do not start a new relationship.
- Keep your children from seeing the other parent.
- Overshare your legal situation on social media.
- Overspend on major purchases.
