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As a lawyer who limits my practice to family law, folks often tell me that they are legally separated because they have split up their assets and debts and are living separately.  In Missouri, those facts do not mean that a legal separation has occurred.

In Missouri, a Petition for Legal Separation is the same as a Petition for Dissolution of Marriage (divorce) except that in the Petition for Legal Separation expressly states that the marriage is NOT irretrievably broken and there IS a reasonable likelihood that the marriage can be preserved.

 

A Judgment of Legal Separation will resolve the same issues as a Judgment of Dissolution of Marriage: spousal support, child custody and child support (if there are unemancipated children), division of marital property and the allocation of separate property to the owner, dividing responsibility for debt, including attorney’s fees and litigation costs.  The only difference in the outcomes is that the Judgment of Dissolution forever severs the marriage while after a Judgment of Legal Separati0n, the legal status of marriage remains.

 

It is important to note that 90 days after entry of a Judgment of Legal Separation, either party may move for the conversion of a Judgement of Legal Separation by filing a simple pleading and paying a nominal filing fee.  The Judge hearing the Motion to
convert has the discretion to deny the conversion but in over 30 years of doing family law, I know of only one instance of that happening and the circumstances were so unique that they are unlikely to be repeated.  Just be aware that although conversion is usually routine, it is not automatic.

 

Unless both people agree to a legal separation, it will be a real uphill battle for the person who wants one. Once a party has denied (or has so stated) that the marriage is irretrievably broken, the party wishing for a dissolution of marriage must satisfy the court  that one of the following is true:  (1) the other party has committed adultery and the party seeking the dissolution finds it intolerable to live with the adulterer; (2)  the other party has behaved in such a manner that the party seeking the dissolution cannot reasonably be expected to live with him or her;  (3) the party  seeking a legal separation has abandoned the party seeking dissolution for a continuous period of at least six months preceding the “presentation of the petition” (it is unclear if that means the filing of the  petition or, more likely when it is called  for hearing) or (4) the parties have lived separate and apart by mutual consent for at least 24 months preceding the filing of the petition.  Number 2 would be fairly simple to establish.

 

Another seldom used provision in the law provides that the court may continue the hearing for 30 to 60 days and suggest that the parties seek counseling.  The court cannot require counseling and after the allotted time, the court is to set the case for hearing and interestingly, either find that the marriage is irretrievably broken and enter a dissolution or dismiss it. It is curious that a Judgment of Legal Separation is not given as an option if it was requested.
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