Legal Separation: What is it and how can I get one?

Sometimes when clients come in to see me, they aren't 100% sure they want a divorce. Maybe something has happened that lessened their faith in their spouse, but they aren't sure they want to throw in the towel completely. So they ask: What about a legal separation?

In Arkansas, legal separation is usually called separate maintenance. The spouse filing for separate maintenance has to prove three primary things: 1) that they are an "innocent" spouse, 2) that they are without sufficient means to provide for themselves or their children, and 3) that the other spouse has sufficient means to provide for them.

What is an "innocent" spouse, you ask? It is a spouse that has not given the other spouse any grounds for divorce. In other words, they have not treated their spouse in such a way that would allow their spouse to file for divorce against them.

The innocent spouse can ask the court to award them "separate maintenance," or alimony, while the parties are separated. They can also ask the court to award them possession of certain property, like the house or the car. The court cannot divide ownership of the property, like they do in a divorce, but it can award simple possession.

During the separation, the innocent spouse has the time and space to think about divorce or reconciliation. During this time, the parties are still married so marital assets continue to accrue, like retirement or paying down the house and cars.

After 18 months of separation has passed, either party will at that time have grounds for divorce based on 18 months of separation and either party can file for divorce at that time.

There are some risks associated with a legal separation, and it is not appropriate in many cases. If you have questions about whether this is the right avenue for you, please contact Leslie and schedule a consultation so that she can assess your particular situation.