What is the Difference Between Legal Separation and Divorce?

Oregon law defines marriage as a civil contract between two people who are at least 17 years old and have the legal capacity to enter into a contract. Both parties must show proof of age to the county clerk to apply for a marriage license. If an applicant is under the age of 18, the person needs to have written consent from a parent or guardian. However, if the minor may obtain a marriage license without consent if:

  • The parent or guardian is not a resident of Oregon; and
  • The minor resided for six consecutive months in the Oregon county where they applied for the marriage license

Millions of couples marry every year in the United States. An average of more than 25,000 marriages occur each year in Oregon. However, some marriages do not last forever. Some couples decide to separate; others choose to end the marriage. Legal separation and divorce result in spouses living their lives separately from each other. Although the processes to obtain a legal separation ad a divorce have similarities, they also have significant differences.

Spouses in a separation decide to remain married but live entirely separate lives. They choose to have an informal separation or a legal separation. The informal separation is a break-up between the spouses. The arrangement occurs by agreement but does not have any legal order to make either spouse comply with the terms. An informal separation does not affect the right and responsibilities of either spouse regarding property, support or their children.

A spouse may seek a legal separation in Oregon because of irreconcilable differences between the couple that caused an irremediable breakdown of the marriage. The couple may not want to get a divorce because of legal, financial, social or religious reasons. A legal separation occurs when a court enters a judgment that allows spouses to remain married but live separate lives. The spouse who files for legal separation is the petitioner. The other spouse is the respondent.

The petitioner must file a petition for legal separation in the county where either spouse resides to obtain a legal separation. After the respondent receives notice of the legal separation suit, an automatic restraining order becomes effective until the end of the case. The order prevents the spouses from selling, destroying, spending, and otherwise wasting marital assets. State law prohibits the spouses from:

  • Canceling, modifying or lapsing by nonpayment insurance policies which the other spouse and minor child are beneficiaries;
  • Changing beneficiaries on insurance policies that cover the other spouse and minor children
  • Transferring, hiding, or disposing of property the other spouse has an interest
  • Spending extraordinarily without consent or accounting of expenditures
  • Exercising authority as a power of attorney or representative of the other spouse

In the legal separation case, the court resolves property and debt distribution, spousal support, child support and custody, and parenting time issues. Then, the judge enters a judgment for legal separation, which contains the terms the spouses must follow.

Although the legal separation is in effect, the spouses remain married. Therefore, they cannot marry another person. A person who marries someone while still legally married to another person commits the crime of bigamy and faces up to five years imprisonment.

Divorce in Oregon is a dissolution of marriage. The case begins when the petitioner-spouse files the petition for dissolution of marriage in the county where either spouse resides. The petitioner must serve the petition on the respondent-spouse to give notice of the divorce case. Once the petitioner serves the petition and summons the other spouse, an automatic restraining order remains in effect. The restraining order is the same for a legal separation and a dissolution of marriage case.

Issues in divorce cases include property and debt division, spousal and child support, child custody and parenting time. The spouses resolve the conflicts by reaching an agreement, or a judge may decide on the issues. The court creates and signs an order that includes the provisions the parties must follow.

Unlike a legal separation, a divorce terminates the marriage. The spouses become unmarried people and can legally marry another person. If the parties want to become spouses again, they must get a marriage license and remarry. When spouses go to court and end a legal separation, they do not have to remarry because the legal separation did not dissolve the marriage.

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