The Difference between Legal Separation & Divorce | WA
–by Sam Darling, Family Law Attorney
Question: What is the difference between legal separation and divorce in Washington State? Answer: Contrary to a common misconception, legal separation is NOT a probationary version of divorce. Rather, legal separation and divorce are nearly identical under Washington law, with the same legal process, relief, and finality.
The following are the main similarities and differences:
1) Same Relief. Courts award the same relief in legal separations and divorces. That is, both result in a division of the parties’ assets and debts, a potential award of spousal maintenance (alimony), and, if applicable, child support, a parenting plan, and other types of miscellaneous orders, such as protection orders, name changes, and attorney fee awards.
2) Same Statute. The same statute – Chapter 26.09 RCW – applies to legal separations and divorces. As a result the applicable legal standards are the same in almost every respect. The court divides property the same way, applies the same maintenance standards, and so on.
3) Same Forms. The court uses the same mandatory pattern forms, from the petition (the first form) to the final decree (the last form). The forms may have different titles, but often even those are indistinguishable.
4) Nearly Identical Procedure. The process is virtually the same for the two alternatives. They require the same filing fees, take the approximately the same length of time, and are decided by the same jurists.
1) Name. The most obvious difference is in name. Some people dislike the word divorce for religious reasons. Legal separation provides them the relief of a divorce without some of the stigma.
Others prefer the name ‘legal separation’ because of its euphemistic quality – it seems less harsh. Often these people want to end their relationship without hurting the other spouse’s feelings as much. This is similar to saying “let’s be friends” rather than “I’m breaking up with you.”
Yet others prefer the term ‘divorce’ because it sounds like a more final and complete end to their relationship. They want to move forward with as few connections to their “ex” as possible, or they want to avoid the impression that they might reconcile.
2) 90-Day Waiting Period. Washington law requires divorcing parties to wait at least 90 days as a “cooling off period” before courts can grant an agreed divorce decree. Arguably this 90-day waiting period does not apply to legal separations, though most people wait at least 90 days anyhow, perhaps to avoid an unnecessary argument with the judge over this issue.
3) Ability to Remarry. Divorced parties can remarry their new love interests. Legally separated spouses cannot, because they remain married to someone else. All US states prohibit polygamy.
Notably, this distinction actually makes very little practical difference, because a legal separation can be converted to a divorce at either party’s request. See below for more information on the conversion process.
4) Insurance. Contrary to divorcees, legally separated spouses often remain within each other’s employer-sponsored health insurance coverage. For instance, a legally separated spouse of a Boeing employee can remain on Boeing’s health insurance policy, because the parties technically remain married. This can be an enormous financial benefit for older spouses (who pay more for private market insurance) and parties with healthcare concerns (Boeing covers nearly all medical costs with negligible out-of-pocket amounts).
Conversion as Matter of Right. Given the above-listed similarities and differences, Washington allows a legally separated spouse to convert his or her decree to a divorce. This is a matter of right; the other party generally cannot object. There are two conditions to conversion: the request cannot occur within six months of the decree of legal separation, and it must not violate a written agreement between the parties. This second condition might apply when the spouses have agreed to delay conversion so both of them can remain on one health insurance plan.
The conversion process is remarkably simple, involves no filing fee, and takes approximately two weeks. The end result is a simple order stating that the decree of legal separation has been renamed a decree of dissolution of marriage. All terms of the decree otherwise remain as they were.
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