The term “legal separation” is a much misunderstood and commonly misused concept. Many people have the notion that there is a formal, legal process to physically separate in Ohio short of filing a dissolution of marriage. In fact, there is no such process that involves the court system. A “separation agreement,” in order to be a valid post-nuptial agreement in Ohio, must be executed in contemplation of the termination of the marriage and is part of the dissolution paperwork. A legal separation is, on the other hand, an adversarial process identical procedurally to a divorce action. That is, the plaintiff must sue the defendant for a legal separation and allege one or more of ten grounds listed in Section 3105.17 of the Ohio Revised Code.
The legal separation process moves through the court system similar to a divorce: a temporary order may be issued with regard to child custody, spousal support or expense monies; a pretrial conference is held to address the legal issues in the case; discovery is conducted; and, the case may result in trial before the court if no settlement is reached. A court may make all the same type of orders in legal separation that it could in a divorce: child custody will be determined; property is valued and divided; and, spousal support can be awarded if reasonable and appropriate. The key distinction, then, between a Decree of Divorce and a Decree of Legal Separation is that the parties are still technically married after the issuance of a Decree of Legal Separation. Nonetheless, because property rights have been determined in the legal separation, the parties “go their separate ways” in terms of property-any property acquired after the Decree of Legal Separation is granted is the individual property of the parties not subject to division in any future divorce or dissolution action.
Who would seek a Decree of Legal Separation? Principally, this process is utilized by parties who want to live separately and permanently divide their property but, for religious or other reasons, do not want to officially terminate the marriage. Consequently, legal separation is a court action that is only infrequently used.