If you want to separate from your spouse and for some reason do not desire to file to dissolve your marriage, you can file a Petition for Legal Separation. People choose legal separation over divorce for several different reasons. Some are opposed to divorce due to their religious beliefs. Some are just morally opposed to divorce. Some don’t want to be the one to file but want to put that ultimate decision on their spouse. Some don’t want to be divorced as they desire to stay as a dependent of their spouse for health insurance purposes. It is important to understand that if you file for legal separation, your spouse can turn it into a dissolution even if that is not your wish.
There are no residency requirements for filing your legal separation petition (you don’t need to be six (6) months in the state and three (3) months in the county) but it is also important to understand that if you filing for legal separation and your spouse files for dissolution in another jurisdiction (assuming he qualifies), then the dissolution case will trump the legal separation case and your legal separation case will be dismissed.
There is no six (6) month cooling off period in a legal separation action. You can proceed to judgment after the response time for the other party has elapsed or as soon as the parties can come to an agreement or trial can be set.
In a legal separation case, we can accomplish everything we accomplish in a divorce case (custody, visitation, support, division of assets and debts) except that you will not be divorced at the end of your case – you will not be free to remarry. If at a later date, you determine that you want to be divorced, then you can file your dissolution proceeding at that time.
If you are filing for legal separation as opposed to a dissolution so that you can remain on your spouse’s health insurance policy, then you would be well advised to research your particular policy. Some companies have a provision that even a legal separation is a triggering event such that for the purposes of dependent coverage, you are no longer an insured dependent.