when it's time to separate

We have previously written about what to do when you need a divorce, but if you find yourself needing a separation rather than a divorce, this might be a helpful read. Sometimes couples may wish to opt for a separation first, giving themselves time to figure out if they want to repair the relationship or move forward with the divorce. Often times a legal separation is used to establish financial boundaries and responsibilities, and can be a significant step forward in the event a dissolution occurs in the future. A legal separation can give the parties a peace of mind that they will not continue acquiring marital property and debts after the separation, making the dissolution less complicated. 

A legal separation can be obtained by filing a petition for separation with the District Court in the county in which you reside. You can do this yourself, using the forms found at www.courts.mt.gov/forms, or you can hire an attorney to assist with the process. A legal separation can be obtained using the same requirements as a dissolution, under M.C.A. 40-4-104. Whether or not you need an attorney often depends on whether you and your spouse agree, your ability to utilize legal documents, and your ability to handle court obligations without the assistance of an attorney. 

If you wish to divide assets at the time of separation, you will need a separation agreement to be filed as part of the separation process. If you wish to keep the marital assets and not separate assets, those assets will need to be equitably divided if you decide to move forward with the dissolution. 

If  you have minor children, a parenting plan will be necessary at the time of separation. The parenting plan should outline the parenting time for each parent, taking into account all of the circumstances, but always hinging on what is in the best interest of the minor children. A parenting plan is crucial to ensure that the separation goes as smoothly as possible for all parties involved, especially the children. 

If you and your spouse agree, you can submit joint documents to the court to obtain a your legal separation, including the joint parenting plan. If you and your spouse cannot agree, it is advisable to obtain an attorney to assist in this process. While it can be done by yourself, utilizing the forms found at www.courts.mt.gov/forms, it is often a process you will want an attorney’s assistance with. 

We hope this is helpful in gathering information for your situation. 

- Jill 

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