Legal Separation in Rhode Island: A Complete Overview
So, what is legal separation?
Legal separation, when used in the context of divorce, means that the parties to a marriage have a legal agreement as to the terms of the dissolution of the marriage, but they have not filed papers in court so as to formally end the marriage. When couples elect to legally separate but not divorce, they are still considered married; however, they have entered into a marital settlement agreement that describes precisely the terms of their legal separation, allocating to each party various portions of the marital property and addressing issues such as child custody, child support and alimony.
Many couples do not know exactly what legal separation is. While many can grasp what the basic concept is, the exact details are sometimes hard to understand. For persons in a marital disagreement who sense that they may need to legally separate, it is critical that they have the best possible legal information about what a legal separation is. A person may want to put together some solid data about legal separation before working with their lawyers on the matter.
Marriage in the state of Rhode Island is a legally binding contract, one that is entered into voluntarily by both parties. Many people enter into marriage not knowing that the "parent" law about Rhode Island divorce also controls the creation of legal separations. Therefore , the terms of legal separations are controlled by the same legal statutes as divorces from marriages in Rhode Island. In fact, a legal separation may as well be called a divorce without a finalization, since the terms of the legal separation are essentially the same as those of a divorce.
Separation without divorce may be a good option for some couples who see no way to stay together but do not want to, or cannot afford to, proceed with a divorce. A legal separation will come with the same legal obligations as a divorce. Therefore, the division of marital property and the tax consequences of the separation will be the same as if the couple filed for divorce. Federal bankruptcy laws treat separations in the same manner as they do traditional divorces.
Couples may enter into a legal separation for a number of reasons. Some couples, for example, may want to give themselves some time apart to see if that helps to resolve their conflicts. Of course, once they are legally separated, both parties are free from the other person when it comes to dating. They are actually legally single, and so they will have the right to make major decisions back toward their individual preferences, which might help them to deal with the stress of going through the legal changes.
Legal Separation Grounds in Rhode Island
In Rhode Island, legal separation is obtained in one of three ways: (1) proper grounds; (2) no-fault or irreconcilable differences; or (3) a written separation agreement. Proper grounds for legal separation in the State are: (1) habitual intemperance; or (2) cruel and abusive treatment or otherwise. Rhode Island General Laws Section 15-5-6.1 details the procedures and forms necessary to "revoke or ratify" a previously entered provisional order of separation. The language used in the statute is not intended to require the filing of two "Pleas" or to require a show cause hearing. Where the provisional order of separation is followed by a final decree, the parties are obligated to comply with the terms of that decree (and all temporary orders as well) unless the terms of the final judgment differ from the temporary orders.
The Process of Legal Separation
In order to legally separate your spouse, you have to file a petition with the court. Similar to divorce, this begins with the family court’s finger-printing process (fingerprints are required for the non-filing party in the case). Once you file the petition, it is assigned a docket number, and you are given another "Notice of Appearance." As with divorce, you will draft the appropriate marital paperwork known as an "affidavit of maritial/financial status."
While this paperwork requires both parties to divulge financial information, if the separation proceeding is being handled "pro-se" (meaning that you are not having an attorney represent you), you may not have all of the documents necessary to prepare the paperwork for the other party. In this circumstance, you need only disclose the information that you have available to you (i.e., if one party handles all of the bills, and you do not even see the bank statements, you cannot be expected to include that access in your paperwork). Thus, if you don’t have the exact bank account numbers, disclose the name of the bank and approximate balance. It is not a simple process, but the court generally accepts this paperwork when prepared in this manner. When the petition is filed, we suggest that you also file a motion to require "disclosure of financial documents," which will generally be granted right away.
After filing the appropriate marital paperwork, and receiving all necessary financial information from your spouse (through either a voluntary disclosure, or certification by the court), the court will send you to Family Court Mediation. This is a free mediation service, available to all litigants. At this point, one party is not yet a "party in interest," meaning that both parties are not yet represented by counsel, and reviewing the financials with their attorney. The mediator in Family Court will act as a liaison between the two parties, and assist with negotiating the terms of the separation. This can be a helpful process.
If you and your spouse have separated, and intend on using this time to attempt a reconciliation, there is no rush to litigate the matter in court. You will be assigned a docket number, an "affidavit of maritial/financial status" will have to be prepared, Family Court will require that the parties attend mediation so that they can attempt to negotiate the issues, and you will ultimately be required to go through the process. If you cannot come to an agreement, the matter will have to be litigated. If you can reach an agreement with your spouse, the separation agreement will need to be drafted. The judge will review your "affidavit of maritial/financial status at the time you make that request in court). You are not required to litigate a separation in sequence with the divorce proceedings. Therefore, you can file for a divorce, and a separation at the same time (we do this all of the time), or you can separate first, and file for divorce later.
The Difference Between Legal Separation and Divorce
Legal separation in Rhode Island is a legal process by which a married couple separates their individual accounts and interests under the law. A legal separation is relatively new to the legal lexicon in Rhode Island. The legislature, which has been relatively slow to legislate on many issues involving the family and marriage, added this new concept to our laws in 2012. The new statute, specifically R.I.G.L. § 15-4.1, allows the Rhode Island courts to issue an order of legal separation only upon the following: Based on this statute, a court will have jurisdiction over matters of legal separation provided that it grants a legal separation pursuant to Section 15-4.1. A judgment of legal separation indicates that the marriage is no longer viable. In some ways a legal separation has the same effect as a divorce because it is a court ordered severance of marital ties. In other ways it differs because a divorce suggests that all marital ties are forever severed. What this means is that if the couple decides at a later date to resume living together and reconcile their differences then they may move forward- without fear that their legal status as married persons would change again. Unlike a divorce, legal separation does not purge all common property from the parties or provide for alimony- in the same way that a divorce would. A legal separation allows for a court order which dictates how the financial ties between the parties will be severed. As an example, a couple who legally separates would likely have an order which states that the parties will sell the marital home, divide the account balances in the parties’ bank accounts and/or resolve any debts which have occurred during the marriage. The difference between legal separation and divorce in Rhode Island is significant in the context of citizenship. Specifically, with a divorce the parties may remarry as their civil status took a legal leap from married to unmarried. This is not the case with legal separation. Unlike a divorce, with a legal separation you are still married. Essentially, you are just separated in the eyes of the law. The legal rhetoric can be confusing but it is essential that you understand that a legal separation does not allow either party to re-marry. If you were to do so, you would be committing bigamy. If you are considering filing for separation in Rhode Island, then you should retain an experienced family law attorney to guide you through the process. If after a period of time your separation is proving to be successful and you do not want to divorce your spouse- then you may pursue a legal separation. Understanding the laws with regard to legal separation is critical.
Money and Custody Issues
A legal separation does not absolve you and your spouse of financial responsibilities and obligations, and you can still be ordered to pay support to your spouse and child. Separation orders can include the entry of child support orders and the division of property — typically with the court’s appointment of a "master" to conduct hearings for the determination of custody and property division issues. And, while separation orders can be made retroactive, the critical date for property distribution is the date of the filing of the complaint.
To file against your spouse under Rhode Island law, you are not necessarily required to have physical separation. Financial separation, in which the parties separate accounts and divide bills, may be all that is required. The date of the separation can be considered the date of filing for spousal support purposes.
It is unlawful in Rhode Island for a spouse to spend marital assets, run up debts, transfer assets , or remove assets from the marital estate without the knowledge and consent of the other spouse. Violations of this rule can be used as evidence against the violating spouse in the property division and child support determination. Separating from your spouse and still residing together in the family home can cause these issues.
Your attorney can moreover draft a pre-nuptial or post-nuptial agreement which lays out terms and conditions for the equitable distribution of property and spousal support in the event of a separation. Before getting married, you can outline individual terms of responsibility and limits on spending, debt, and distribution of funds. For example, you can detail the obligation of either or both spouses to manage accounts, and the allocation of future income and investments.
When spouses cannot agree on physical separation and support provisions, either or both parties can petition the court for temporary relief that separates them financially while the divorce proceedings are pending. This temporary relief addresses property, child custody, child support, health insurance, college savings, and visitation issues.
In cases in which time-to-date of division of property is critical, such as in the case of a drop in value of the marital real estate, spouses can engage in mediation to save time and costs.
Ending or Changing a Legal Separation
A legal separation agreement can be modified or ended by the parties, mutually or unilaterally, without obtaining a divorce. If both parties to the legal separation mutually agree upon a modification or an end to the separation, the process is simple and both parties can have input. If one party would like to modify its terms of the legal separation and the other party does not consent to the modification or end of separation, the party seeking the modification will have to apply to the Family Court for same. If the parties are no longer able to live together, separation is often the best alternative to divorce. However, if a divorce is in the best interest of one or both parties, at any point a legal separation can be changed to a divorce.
Seeking Legal Representation
If you are considering legal separation, it is important to obtain the advice of a Rhode Island attorney that focuses his or her practice on family law. Family law involves the division of property, support of children and property rights between spouses. Only an attorney that is thoroughly familiar with the relevant statutes and decisional law in Rhode Island will be able to provide you with the proper guidance. If you are contesting your spouse’s filing for legal separation you will need an attorney to represent you and protect your rights pursuant to the Law. Often appointing an attorney early in the process will avoid long term and expensive disputes.
Frequently Asked Questions About Legal Separation in Rhode Island
Here are the most common questions I typically get regarding legal separation in Rhode Island:
Is legal separation a common process in Rhode Island?
It is a common first step prior to filing for divorce. Although there are many people that go through a legal separation, the vast majority of divorces in Rhode Island begin after a legal separation has taken place.
Is a legal separation the same as a divorce?
No. A legal separation is a temporary arrangement created by the court that temporarily addresses custody and child support as well as property ownership, spousal support, and other relevant issues. It does not end a marriage like a divorce, but it establishes an environment where the parties are not living together, and the court can enforce the terms of the separation agreement to ensure compliance.
How long does a legal separation last in Rhode Island?
A legal separation lasts until one of the spouses files for divorce , or until the parties request to have the legal separation decree set aside. The terms of the separation are temporary in nature, and the outcome of a divorce motion can either set aside the terms of the separation or create an entirely different decision.
Is a legal separation the right option for my family?
Of course, every situation is different. Legal separation is generally a good option for couples who want to remain married, but are unable to cohabitate. The court can enforce the terms of your decree, but once you feel that reconciliation is impossible, or other circumstances have changed, you may wish to file for divorce.
Am I automatically granted separation if my spouse leaves the home?
No. The courts don’t treat separation that way. You must file a motion and request that the court grant a legal separation based on the terms you and your spouse have agreed upon or those the court determines are appropriate under the circumstances.