Read LawAugust 17, 2021
A Guide to Legal Separation in Utah
Getting divorced in Utah results in the legal end of a marriage. If you are not sure you would like to end your marriage, getting legally separated could be a beneficial alternative. The process of legal separation will not end your marriage. Instead, it puts your marriage on hold temporarily, giving you time to decide what steps you would like to take.
In Utah, petitioning the court for legal separation is called an action for “separate maintenance.” In a legal separation, you will need to deal with many of the same issues as divorce, such as child support, child custody, and what to do with your family home. However, you will not be deciding on these issues permanently.
- 1 How Long Does a Legal Separation Last?
- 2 The Benefits of Legal Separation
- 3 The Process for Legal Separation in Utah
How Long Does a Legal Separation Last?
In Utah, legal separations only last one year. If you want your legal separation to last longer, you will need to petition the court and ask for an extension. The purpose of legal separation is to give the spouse time to figure out whether to go forward with the divorce or try to reconcile and live together again after the one-year separation.
The Benefits of Legal Separation
There are several benefits that come with a legal separation in Utah. You may have hope that you will eventually get back together, and you do not want to end your marriage just yet. Perhaps you or your child has a health issue, and you need to stay on your spouse’s health insurance policy. If you get divorced, the insurance company will kick you off the health insurance policy.
In these types of situations, staying married but living apart made sense. This is what legal separation allows you to do. Additionally, if your religious beliefs or culture do not support divorce, a legal separation can be beneficial. Obtaining a legal separation can also promote stability for young children by giving the spouse the freedom to move away from their relationship.
The Process for Legal Separation in Utah
The process for filing for legal separation is similar to filing for divorce. The filing process starts when either spouse files a petition for separate maintenance with the local court. The individual filing the petition must demonstrate that they meet their state’s residency requirements and that at least one of the spouses had lived in Utah for at least 90 days before they filed for divorce.
Like the divorce process, a couple seeking legal separation can agree on the terms of separation themselves. However, unlike in a divorce, which can happen based on irreconcilable differences, the spouse petitioning for separate maintenance must provide a legal reason, or ground, for separation. Utah recognizes the following grounds to seek separate maintenance:
- One spouse desserts the other spouse without good and sufficient cause
- One spouse is sufficiently able to provide support and neglect or refuses to properly provide for and suitably maintain that spouse, or
- Living separate and apart from the spouse for a certain amount of time
Do We Need a Written Separation Agreement?
Whether you decide to proceed with a legal separation or divorce case in Utah, it must be done in writing. You will need to address property division, child support, healthcare, child custody, visitation, and spousal support. A legal separation is a legally binding agreement on both spouses, and the court uses these types of contracts to protect the parties from frivolous lawsuits in the future.
The Waiting Period for Legal Separation
According to Utah law, you must wait a minimum of 30 days after you petition the court for legal separation before the separation can begin. If the judge overseeing your case finds extraordinary circumstances, he or she can waive the waiting period, but this is rare. If you have minor children, you will need to attend a divorce education class, and orientation before the judge will grant your legal separation. Typically, couples fulfill this requirement during the waiting period.
If you do not have any minor children, you can negotiate the terms of your separation with your spouse during the waiting period. You will need to decide on a parenting plan for your family, child, and spousal support issues and how you’ll handle property indent division during the separation.
Legal Separation and Mediation
As with divorce, if you cannot agree on how to resolve these issues, you may be required to attend a mediation session before presenting your case to the judge. A mediator is a neutral third-party professional with training on how to assist you. You will discuss your differences in a controlled, safe environment to come to some type of agreement with your spouse.
Converting a Legal Separation to Divorce
Suppose you become legally separated, and five months into the separation, you decide to get divorced. When neither spouse wishes to converge the legal separation into a divorce, that spouse can petition the court by submitting a motion with the court. The other spouse can object, and if so, the spouse seeking divorce will need to demonstrate that he or she meets the guidelines for divorce in Utah. Once that has occurred, the court will approve the request. If there are issues the spouses cannot agree on, there may be a trial.
Legal Separation and Child Custody
If you are a parent, you may be concerned that a legal separation will affect your ability to see your children. Legal separation does not necessarily affect custody. If minor children are involved, the court will consider the children’s best interest when approving a parenting plan. In Utah, judges assume that joint legal custody between both parents is the preferred option. If it is not the preferred option, one parent can prove that they should have primary custody. The judge will evaluate several factors in every case, including the parent’s ability to provide for children before deciding.