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Family Law – Separation Process

A legal separation is often a solution for couples not ready to divorce. For some, a separation means the opportunity to step back, think about their marriage, and figure out a way to get it back on track. Others choose a separation to prepare for a divorce. Regardless of the purpose of the separation, there are three basic steps involved, which are much like the steps in a divorce.

Step 1: Complaint

The first step towards a legal separation is filing a complaint – otherwise known as a petition. This petition requires both spouses’ full names and birth dates, any children, date of the marriage, and date of the separation. You must also be prepared to fill in the grounds for separation.

Grounds

Filing a separation petition is similar to filing for divorce in that the same legal grounds are accepted. If both parties agree to the separation, Oklahoma allows them to file a no-fault petition for separation. However, if a petitioner is filing separately, Oklahoma recognizes and typically accepts ten types of faults:

  • Extreme cruelty
  • Abandonment for at least a year
  • Habitual drunknenness
  • Imprisonment of the other spouse
  • Fraudulent contract
  • Insanity for at least five years
  • Gross neglect of duty
  • Impotence
  • Adultery
  • Extramarital pregnancy

Step 2: Papers Served

The other spouse will then receive a copy of the separation papers. This gives him or her the chance to prepare and to attain legal representation.

Step 3: Separation Agreement Created

The court works with the spouses to create a separation agreement to resolve any issues involving child custody, debt, property, and alimony.

Division of Property

During a legal separation, the courts divide property as equitably as possible. Anything a spouse brought into the marriage or acquired on their own during the marriage is typically considered separate property. This will go to the owner. Property acquired together during the marriage is split between spouses in a way the court feels is fair.

Child Custody

Child custody is treated the same with a legal separation as with divorce. The court takes into account the child’s best interest, each parent’s relationship with the child, and each parent’s ability to meet the child’s needs.

If there are additional factors, such as the possibility of having to change schools, it may impact the court’s custody decisions. If things work out well with the child during the legal separation, the court will likely leave the custody orders the same should the couple decide to divorce.

Alimony and Child Support

Even without an official divorce, the courts can award alimony to an eligible spouse. If children are involved, the courts will award child support to the custodial parent. As with custody, the alimony and child support might remain the same if the couple divorces, depending on how the terms go during the separation.

Visitation Rights

The non-custodial parent is allowed to have frequent contact with the children as that contact is in the child’s best interest. As such, visitation cannot be denied, even if the non-custodial parent cannot or does not make the child support or alimony payments.

Let a Family Attorney Help You

A separation can be a very difficult process, especially for those couples not on the same page. A family lawyer can help guide you through your separation and give you the best chances of success.

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