Legal Separation or Divorce in Maine

Some couples in Maine decide to live separately without seeking a divorce. This can be an informal arrangement, as is often the case during a trial separation, or a more formal separation where two spouses agree to live apart but do not wish to irretrievably break the marriage

There are as many reasons for arranging a legal or “judicial” separation as there are for pursuing a divorce.

So, what are the main differences between legal separation and divorce in Maine? Why do couples choose one over the other? And how does legal separation affect custody of the children?

Table of Contents

1. What is legal separation in Maine?
2. What’s the main difference between divorce and judicial separation?
   1. Why choose separation over divorce?
3. Is a trial separation the same as legal separation in Maine?
   1. Five tips for a trial separation
4. How does legal separation affect child custody?
5. Do you need a separation agreement for a legal separation?

What is legal separation in Maine?

Most people know what divorce is, but the same does not necessarily apply to legal separation.

Legal separations are called “judicial separations” in the Maine courts. They are handled by the Family Division of the District Court.

You can apply for judicial separation if you and your spouse have lived separately continuously for at least 60 days. You can either file a motion for judicial separation together with your spouse or alone.

The first step after you file will be to meet with a family law magistrate. If there is no agreement, you and your spouse may need to attend a mediation session if it is ordered by the court. Here, a professional, independent mediator will try to facilitate a reconciliation between you or, if that is not possible, help you to decide on the terms of your separation agreement.

For judicial separations in Maine, you’ll need to meet the state’s residency requirements, just like with divorces. One of the following must apply:

• You or your spouse have lived in Maine for a minimum of six months
• You are a resident when you file for separation and you were married in Maine
• You are a resident of Maine and you and your spouse lived in the state when you separated, or
• Your spouse is a resident of Maine

To be granted your request, you’ll also need to provide the court with grounds for your legal separation. The most common reason cited by couples is irreconcilable differences (Maine is a no-fault divorce state).

Many of the same issues that need to be resolved in divorces also need to be addressed with judicial separations. Namely:

• Division of marital property and debt
• Parental rights and responsibilities
• Child support
• Spousal support

Note that just because you file for judicial separation doesn’t mean that you can’t file for divorce at a later date.

It is, however, easier to get back together by asking the court to terminate your judicial separation than having to remarry after a divorce.

What’s the main difference between divorce and judicial separation?

As you’ve seen, there are many similarities between judicial separation and divorce, including the grounds for making a request to the court, the process of filing a petition, the residency requirements, and the key issues that need to be resolved.

However, at the end of the divorce process, the court legally terminates the couple’s marriage. The spouses are then free to remarry.

With a legal separation, at the end of the process, you are still legally married. You are free to date, relocate, and do all the things that an unmarried person does except marrying someone else. That is the fundamental difference between divorce and judicial separation.

Why choose separation over divorce?

There are many reasons for couples who might not want to remain living together to prefer legal separation to divorce.

Most obviously, the couple may not be sure they want to end the marriage and want to give themselves time to see if a reconciliation is possible. They may want a “trial run”. During a legal separation, they might participate in counselling to try to work out their problems together.

A standard separation can expose the couple to problems concerning property, child custody, parenting etc., whereas a legal separation addresses these issues via a formal separation agreement.

The court can issue the same types of orders as in divorces, covering division of assets and debts, custody and support of minor children.

Religious reasons may deter couples from seeking a divorce or the couple may believe it is in the best interests of the children to remain married: other good reasons for a judicial separation.

There are also practical and financial reasons for preferring legal separation to divorce. For instance, legal separation can preserve significant tax and medical insurance benefits that would automatically terminate with a divorce.

Is a trial separation the same as legal separation?

A trial separation is a way for couples to live apart while remaining married. In that respect, it is the same as a legal separation, except it hasn’t been formalized by a judge.

You do not need the court to ratify a trial separation, as you do with a legal separation. You and your spouse can simply start living apart.

A trial separation may lead to a reconciliation of the couple, judicial separation or divorce.

Five tips for a trial separation

1. Set expectations. It’s a good idea for you and your partner to lay out a few ground rules and define boundaries: How long will it last? How will you communicate? Is it acceptable to sleep together?
2. Commit to counselling. If you are both committed to making the relationship work, marriage guidance counselling can help you demonstrate that commitment.
3. Discuss your differences openly: You likely have different issues to solve and hope for different things. These need to be discussed openly and honestly with your partner.
4. Explain the situation to the children: depending on their ages, you’ll need to explain what’s happening to the children so they are clear on what the upcoming changes mean. The older the children, the more honest you can be.
5. Stay connected: even if you have strict communication rules in your separation (e.g., no unannounced visits) it’s important to keep communicating best you can – especially if you have children.

How does legal separation affect child custody?

If you have children, try to work out a suitable custody and parenting arrangement together if you are going to file for legal separation.

Also, work out support and how much the primary physical custodial parent is going to need for living expenses for the children each week while you are separated.

Otherwise, the court may request an investigation to determine the most suitable arrangement in the best interests of the children. If necessary, custody, visitation and support arrangements can be ordered by the court just like in a divorce case.

Do you need a separation agreement for a legal separation?

In judicial separations, you need a separation agreement that puts everything in writing between you and your spouse. It is a legally binding agreement signed by the judge. In Maine, it is called a Judgment for Separate Maintenance.

The agreement contains important information about property and debt division, child custody, parenting and support, and spousal support during the legal separation.

If either spouse files for divorce, the separation agreement is terminated when the judge signs the divorce decree. It will be replaced by a new agreement that will need to be drawn up as part of the divorce process.

Should a couple reconcile, the separation agreement should be cancelled by the court.

If you need assistance with any aspect of a legal separation or divorce in Maine, call The Maine Divorce Group to set up a case strategy session with one of our attorneys.