Defining Legal Separation in Maine
In Maine, when a couple decides to live apart without ending their marriage they may choose to separate or get a divorce. A legal separation means that the couple has a court order referring to their legal status. The process is similar to that of a divorce with regard to the terms it incorporates, which will at a minimum include information on the parties’ property, alimony and parental rights and responsibilities. Because a divorce is final, many couples do not want the permanent consequences. Additionally, if the couple decides to reconcile their marriage their decision to separate avoids a lengthy divorce litigation process. Some couples also find it financially beneficial to separate .
A legal separation is appropriate for many people; however, there are a couple of things to keep in mind if taking this route. First, the language in the separation agreement is what the judge will use as the basis of a future divorce. Second, items mentioned in the separation agreement can be used against the spouse in the event of a future divorce. If you and your spouse decide to reconcile after a separation, the separation agreement may provide evidence if deciding how to distribute marital property. In general, the court will look at any agreement between the parties and tailor its findings to what either party can show as substantially changed circumstances.
Legal Separation Essentials
In order to be legally separated in the state of Maine, a couple must first meet the residency requirement. Either one party or both must be residents of the state and must have established residency in one of the counties for the required amount of time. If only one party is filing for the separation and the other has not lived there for the required time, then the separation must be initiated in the county where the two have lived together as husband and wife. Standard residency periods must meet the following:
Couples must also determine if there is a valid legal reason for separation under Maine law. Separation cannot be used as a tactic to gain leverage in divorce proceedings. A legal separation does not necessarily increase the chances of saving a damaged marriage. While it can offer breathing room to decide the best course of action, it is usually a prelude to divorce, not reconciliation.
The residency requirements are meant to ensure that the court system is not unnecessarily overwhelmed. This also creates a forum for courts to hear and decide separation before there is an official dissolution of the marriage. But technically, a legal separation is just a step away from being legally divorced.
Documentation is needed for the separation filing. Among the required information are such details as the physical address where the couple lived together, the current home assigned to each party, the date that the parties separated, and whether there are any children.
Petitioning for Separation
There are several steps that must be followed when filing for legal separation in the State of Maine. The basic procedure is as follows. 1. To begin the process, the Plaintiff completes a Summons and Complaint for Divorce (Hearing without Children) as well as a Civil Case Cover Sheet and Motion for Removal of Conditions on the Divorce Action. While you are free to fill these forms out on your own, an experienced family law attorney can ensure this process is completed in accordance with the law and can help you prepare for the court proceedings. 2. Once the Complaint has been properly filled out, you will be required to file the documents with the applicable court. At this stage, you do not have to physically appear at the courthouse and may instead send all necessary paperwork and fees through the mail. It is important to remember, however, that the filing fee to submit a Complaint for Divorce non-contested in Maine is $150.00. 3. After filing, the court will issue you a Notice of Hearing for Divorce form that indicates the date and time of your hearing. Both parties must participate in the hearing. 4. Prior to the hearing, the Plaintiff must complete the Affidavit of Plaintiff Regarding Pension Rights, Nonmilitary Status and Estimation of Living Expenses form and bring it to the hearing. This should be completely filled out in full and should list all assets and debts. Additionally, it may be of use to provide copies of tax returns for the previous three (3) years, bank and/or credit card statements, pay stubs, and any documents regarding pension rights and health insurance options. 5. If you have any children under the age of 18, you may have to attend a Parenting Education Class at some point before your divorce or legal separation is finalized. The class is typically around one (1) day in length. 6. In cases where the Defendant has received legal notice of the hearing either through admission of service or publication, the hearing will be held at this time. In scenarios where there is no proof that notices of the hearing were issued, this procedure will be re-scheduled for a later date. Once the hearing has been completed, it normally takes two to seven weeks until the Divorce Judgment is issued.
Legal Separation: Rights and Duties
During a legal separation, the couple remains married but takes steps similar to a divorce to address the issues affecting their lives. Unlike in a divorce situation, all assets are considered marital unless you can specifically prove that a certain item is separate property and owed to you alone. This means that if you wish to keep a certain asset, you will need to prove it is yours rather than joint property. The responsibility for the asset lies with the spouse responsible for the payment. So, if you own the house and the mortgage is in your name alone, you are solely responsible for making the mortgage payment and paying the property taxes. However, if you move out of your house and it is still in both your names, you have a responsibility to maintain the property or you can be held liable for its deterioration.
There may be support issues to contend with during a legal separation. If one spouse was the primary wage earner before the separation, they may be ordered to continue to pay a spousal support payment. This amount will be determined by a variety of factors, including income of both spouses, length of time the couple has been married, and the potential earning capacity of the second spouse. Child support may also be ordered. Whether the couple can live separately on the amount of the support will usually be taken into consideration in determining whether the arrangement is appropriate.
A legal separation can be contested by either spouse. Each spouse should have legal counsel to protect their rights during this process. The servicer of child visitation rights will generally issue a temporary order that both spouses must follow until the court makes a permanent determination.
Legal Separation vs. Divorce – The Differences
Differences Between Legal Separation & Divorce
Legal separation is a judicially approved process through which a couple utilizes the Maine court system to create enforceable terms to their separation, even if they do not have a desire or intention to divorce at that time. While in most cases marriage can be dissolved and assets and debts divided at the same time, in Maine, a legal separation and a divorce are two separate legal actions and should be filed separately with the court.
Essentially, while legally separated, a couple remains married under the law but has agreed to separate terms for how they will live and manage their lives while separated. The signed agreement agreement is called the Separation Agreement and incorporates terms on the division of assets and debts, custodial time-sharing, child support , health insurance, tax filing status and any other relevant issues. Once fully executed by the parties, the Separation Agreement, if approved by the Court upon request, can be attached to a Divorce Complaint to streamline the process for an ultimate divorce in the future.
Legal Separation is most often used by people who do not yet want to permanently end their marriage but wish to have the security of legally binding agreements to help them structure their lives separately from each other. In some cases, a legal separation may help to clarify parenting and financial arrangements, provide a respite for the parties, and open some opportunities for reconciliation. It may also be beneficial in helping a newly-separated couple learn to live apart before proceeding with a permanent dissolution of the marriage.
Advantages and Disadvantages of Legal Separation
In Maine, consider the following benefits and drawbacks:
Benefits:
Emotionally: Legal separation allows spouses to begin evaluating the viability of a future divorce while test driving the separation process. For many people, it provides enough time to get accustomed to the idea of living apart from each other and deciding if divorce is their best option.
Financially: Legal separation provides a way for the economically disadvantaged spouse to gain a legal entitlement to alimony and a distribution of the marital estate before divorce, so the dependent spouse can begin budgeting and living in an appropriate economic bracket prior to divorce.
Legally: Legal separation provides a way within the Maine divorce process for spouses to settle all of their issues prior to filing for divorce. This means the spouse who files for divorce after separation does not need to await the passage of the 60-day separation period after filing to get a divorce hearing, since the remaining divorce process only takes about (on average) three months in cases where there are really no remaining disputes. In other words, getting the legal separation paperwork done earlier on allows divorcing spouses to in affect get a leg up on the overall divorce process.
Drawbacks:
Emotionally: Many spouses with a primary "stay at home" parent facing divorce believe they will be frustrated by the slow pace of the legal separation process and end up having to wait years to get divorced, leaving them miserable. The Maine divorce process typically has a three-month waiting period after the initial filing for a divorce and the 60-day period legally required for separation is often successfully waited out through the initial filing for divorce. Some agree to wait the additional 60 days after the divorce filing, coming to terms with 120 days of not living together but divided into separate homes.
Financially: Legal separation may cause unexpected issues for one of the parties. For example, if the spouse seeking to leave the marital home applies for non-legal solutions to living apart (like a lease agreement or purchase agreement for real estate) and fails to disclose that there is pending litigation in the way of a divorce case, the counterparty to the pending litigation may move to hold the party who did not disclose liable for any lost opportunity to obtain a divorce property division settlement.
Legally: Legal separation may provide clarity on unknown issues in the divorce process. However, separating issues may encourage certain parties to fight the process harder on issues they are less than happy with once they have more information to work with. Therefore, it is essential to avoid separating issues that may encourage needless fights the lawyers will wind up getting paid for to make happen, which doesn’t teach the parties much of anything on their emotional journey through the process. When discussing this issue with a Divorce Lawyer in Portland Maine, be sure to discuss why you wish to separate your legal issues, whether there are hidden motivations like certain family members getting involved in the divorce fight, and how to avoid those hidden agendas from emerging in the process.
Altering or Ending Legal Separation
In Maine, the Court or the parties themselves can initiate modification proceedings for legally separated parties if circumstances change after the Separation Agreement is finalized. Similarly, parties can exercise their right to convert the legal separation into a divorce. The procedural steps required in either case depend upon the circumstances surrounding the request and the relevant Maine statutes.
The parties may wish to amend the terms of a Separation Agreement to alter provisions that are no longer applicable, possibly because of a substantial change in circumstances such as a new job or an increase or decrease in income. As Maine statute 19‐A MRSA § 1655 addresses modifications and enforcement for either a final judgment or separation agreement, the parties may agree to execute an amendment to their final judgment or Separation Agreement. This amendment must be in writing and include all necessary information; if oral, it can be enforced only upon a finding that the other party had sufficient knowledge of the terms. 19 ‐A MRSA § 1655 may also be applied to enforce the provisions of either a Separation Agreement or judgment of divorce, including spousal support, division of debts, and child support. If there is a dispute over the interpretation of the terms of the Separation Agreement, the Court will review the Separation Agreement to determine if the parties intended the ambiguous language to include or exclude the facts at issue.
Either party may file a petition to convert a legal separation into a divorce or a motion to dissolve the marriage within one year of the date of the Separation Agreement or at any time thereafter, pursuant to 19‐A MRSA § 902. However, the parties must establish that a legal separation is not in their best interests. In the event of conversion to a divorce, any provisions of the initial Separation Agreement will be incorporated into the divorce decree; however, any part of the Separation Agreement that is inconsistent with the divorce decree and that favor the party who brought the action may be modified by the Court. In a conversion, the Court will evaluate any new evidence available and may reconsider the full record. In contrast, when the parties jointly file a divorce petition or proceed without an attorney, the spouses agree to the terms of the divorce by signing the same document.
Engaging a Lawyer in Maine
It is strongly recommended to obtain legal counsel if you are seeking a legal separation in Maine. A qualified family law attorney can help you navigate the complex process and advocate to ensure you obtain the best outcome. They can help you prepare and file necessary documents, represent you during court hearings and negotiations , and answer any questions you may have about the process. In seeking a qualified family law attorney, it is best to contact the Maine Bar Association for a referral. You can also schedule an initial 30-minute consultation, which is often free or offered at a low rate. This will give you the chance to meet the attorney, without obligation to hire them. You should also review any online client testimonials.