The law allows for the court to issue a Decree of Legal Separation for a married couple when they want to separate but stay legally married to protect significant religious, financial, social or legal interests. While they will keep their married status, the court will:
Learn more about dividing marital property and debt, figuring out a parenting plan and calculating child support.
Sometimes there may be a breakdown in the marriage and the couple wants their relationship to end but they do not want to get divorced to protect significant religious, financial, social or legal interests. For example,
It is a good idea to talk to a lawyer to see if a legal separation or a divorce is the right process for your situation.
No, a legal separation is not a required step before getting a divorce. It is a totally separate process, although the court treats (1) the division of marital property and debts and (2) the parenting plan and child support for their children the same in a legal separation and a divorce.
Most times when a couple splits up, they separate informally without any court involvement. This often means they may:
An informal separation does not have a court process and does not result in a court order based on the couple’s separation status. If either spouse files for divorce, the court will want information about the separation date which can be important when dividing marital property and debt and figuring out when child support should start.
A legal separation is a formal court process that recognizes the couple’s specific status as having a "legal separation." To use this process, the couple wants to separate but stay legally married to protect significant religious, financial, social or legal interests. A legal separation results in a court order that outlines each spouse’s legal rights and responsibilities about their property and debt, parenting their children and child support.
If both spouses agree to a legal separation because they want to stay married as well as all of the other issues (property and debt division, parenting plan for children), they can file one of these uncontested complaints (choose the one, depending on whether there are children or not):
There are other required affidavits and forms that go with the Uncontested Complaint:
Learn more about dividing marital property and debt, figuring out a parenting plan and calculating child support.
If both spouses agree to a legal separation because they want to stay married but disagree about the other issues (property and debt division, parenting plan for children), one spouse would file one of these complaints stating what he / she want to happen in the case (choose the one, depending on whether there are children or not):
The other spouse would file an answer to the complaint, stating what he / she wants to happen in the case:
There are other required affidavits and clerical forms that go with the Complaint and Answer forms:
Learn more about dividing marital property and debt, figuring out a parenting plan and calculating child support.
If the defendant does not file an answer within 20 days of being served with the plaintiff’s complaint, the plaintiff may ask the court to default the defendant and grant the plaintiff everything asked for in the complaint. Learn more about the default process.
If one spouse wants a divorce, the court will grant a divorce instead of a legal separation and the marriage will end. What to file depends on whether the court granted the legal separation already.
If it is a new case and the spouse who wants a legal separation filed a Complaint for Legal Separation with the court, the other spouse can file an Answer with a counterclaim stating he or she does not agree and wants a divorce instead:
If the court already issued a Decree for a Legal Separation and one or both spouses later want the marriage to end, either can file:
Yes. If the court issued a Decree for a Legal Separation and one or both spouses later want the marriage to end, either can file:
At that point, generally the only issue for the court to address is ending the marriage and issuing the Divorce Decree because the legal separation case decided all other issues (property and debt division, parenting plan and child support).
After the court issues a Legal Separation Decree, if either spouse wants to convert the legal separation to a divorce, generally the only issue for the court to address is ending the marriage and issuing the Divorce Decree. Usually the initial legal separation case decided all other issues (property and debt division, parenting plan and child support) in a final order.
To figure out whether the court will likely change the property or debt division or the custody issues in the divorce, it is important to understand what the Legal Separation Decree and orders say about the issues and whether they are final or temporary.
If the court issued a final order about the property and debt division in the legal separation, It is very difficult to change the outcome of final property and debt decisions. Once the court order divides and distributes property and debt to a specific person, that person may take action that is very hard or impossible to reverse. For example, if the court awards a spouse the house from the marriage, he may sell the house. At that point, it would be impossible to get the house back if the other spouse thinks something different should have happened with the house. Also, the court could order one spouse to receive a sum of money from the marriage. The receiving spouse may spend that money and not be able to get it back.
If you want to ask the court to change a property or debt division order, you can file:
Sometimes the legal separation case decides property and debt or custody issues on a temporary basis and did not issue final orders so they may be changed later. You can request what you want in the Motion to Convert Legal Separation to Divorce, SHC 1336.
If the court entered a final order about custody, parenting plan or child support, there may be a change of circumstances that allows these issues to be changed. You can explain the changed circumstances in the Motion & Affidavit to Convert Legal Separation to Divorce, SHC 1336. Read more about modifying a parenting plan or child support.
If you don’t like the outcome of the legal separation case, it depends on what issues you are unhappy about. If you think there was a problem with the division of property and debt, or the parenting plan or child support, read about your options after the decree is issued.
If you decide you do not want to be married to your spouse, you can file a Motion & Affidavit to Convert the Legal Separation to Divorce, SHC-1336. However, the divorce would likely only deal with ending your marriage and not address the property and debt division or child custody and child support if the court issued final orders about them.
Yes. Fill out the forms that fit your situation:
For forms and information about the process, call the Family Law Self-Help Center Monday –Thursday 7:30 am to 6 pm: (907) 264-0851, or if you need a free call and are calling from a non-Anchorage number in Alaska (866) 279-0851.
Sometimes the judge asks one of the parties to file draft final documents for the judge to sign. If this is the situation, you will file a set of 2 documents together. Choose the one that applies based on whether you have children under age 18. Fill out the case caption at the top and the judge will fill in the rest of the information, including the signature at the end.
If you have children under age 18
If you don’t have children under age 18
| Rev. 31 December 2018 © Alaska Court System www.courts.alaska.gov |
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