NOT SURE WHETHER TO DIVORCE — IS LEGAL SEPARATION THE ANSWER?
Oklahoma law makes provisions for married couples who wish to no longer live together but have reasons to wish not to dissolve their marriage. These reasons could include religious concerns or the ability to remain covered by insurance that is only available to a spouse of an employee. Yet, while they desire not to dissolve the marital bonds, they feel the need for court orders to ensure their financial support, the care and support of minor children, and the right of visitation or access to minor children for a non-custodial parent.
Another reason to choose legal separation over divorce there is no minimum residency requirement for legal separation. As will be discussed below, for a divorce one of the parties must have been a resident in Oklahoma for six months for the Court to acquire subject matter jurisdiction. The requirement cannot be waived. On the other hand, there is no residency requirement for an action for separate maintenance or legal separation. There isn’t even a minimum residency requirement to establish venue. A separate maintenance action may be filed in any county where either party is a resident. 43 Okla. Stat. tit. 43, §103(A)(2). If a person desiring to file for divorce has not lived here six months, and assuming Oklahoma could obtain personal jurisdiction over the other party (and UCCJEA jurisdiction when applicable), they could file an action for separate maintenance to get into place temporary orders establishing the right to use and possession of property, support obligations, and custody and visitation rights. When the party has lived here long enough to confer subject matter jurisdiction, the Petition could be amended to one for divorce.
The process and procedure for a legal separation, is identical to the process and procedure for a divorce, as described below. At the end there will be a Decree of Separate maintenance instead of a Decree of Dissolution of Marriage. When a case is filed initially as one for legal separation, it may be possible to amend the Petition at a later date to request a dissolution of marriage instead. As will all amendments to a Petition after the other side has answered, the court must approve the amendment to the Petition. This will definitely lead to some amount of additional expense for the Motion to Amend and the Amended Petition. The amount of extra cost may depend on whether there is opposition to the amendment. To avoid this additional expense, the case can be filed as one for dissolution of marriage with a request for entry of a temporary order. While we normally think of a Temporary Order as governing the rights and obligations of the parties during the pendency of the divorce action, the Temporary Order could also serve as a Temporary Legal Separation Order. In this context the parties will separate while working on saving their marriage or making the decision to permanently end it. If the reconciliation works, the case is simply dismissed. If reconciliation does not occur, no amendment to any pleadings will be required.
