Can I file for legal separation if my spouse is filing for divorce? 26 Answers as of June 21, 2011

Can I file for legal separation if my spouse is filing for divorce? Do both parties need to agree on this or does the divorce hold?

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Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
If your spouse files for Divorce and you file for Legal Separation, your spouse will receive the Divorce, which requires only irreconcilable differences. Your wanting a Legal Separation vs. your spouse's wanting a Divorce is an irreconcilable difference which will result in the Divorce being granted.
Answer Applies to: California
Replied: 6/21/2011
Seattle Divorce Services
Seattle Divorce Services | Michael V. Fancher
Under Washington law, if one spouse is requesting a divorce, they are entitled to get divorced.
Answer Applies to: Washington
Replied: 6/20/2011
Howard W. Collins, Attorney at Law
Howard W. Collins, Attorney at Law | Howard W. Collins
The divorce action in Oregon will prevail.
Answer Applies to: Oregon
Replied: 6/20/2011
Cody and Gonillo, LLP
Cody and Gonillo, LLP | Christine Gonilla
The divorce will prevail.
Answer Applies to: Connecticut
Replied: 6/20/2011
Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
You can't prevent a divorce. All that needs to be shown is the marriage is irretrievably broken.
Answer Applies to: Washington
Replied: 6/20/2011
    Michael Rose Attorney at Law
    Michael Rose Attorney at Law | Michael Rose
    The divorce will hold. You have to file a Response.
    Answer Applies to: California
    Replied: 6/20/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    There is no such thing as legal separation in Texas.
    Answer Applies to: Texas
    Replied: 6/20/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    In Colorado a Legal Separation (i.e. one approved by the Court) can only be granted if both parties agree to it.
    Answer Applies to: Colorado
    Replied: 6/20/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    The divorce will hold. In order for the court to grant a legal separation, both spouses would have to agree. Since a legal separation prohibits a spouse from being remarried, both parties are required to consent to a legal separation. Only one spouse is required to consent to a divorce.
    Answer Applies to: California
    Replied: 6/20/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    You should retain a divorce lawyer ASAP to discuss your rights and options, including whether a separate maintenance action would be counter-productive. Good luck!
    Answer Applies to: Georgia
    Replied: 6/20/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    I suppose that you could file for a legal separation. However, it would be a waste of time and money to do so. This is because if your spouse is willing to swear that the marriage is irretrievably broken, then, the divorce is going to over ride the legal separation.
    Answer Applies to: Washington
    Replied: 6/20/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    In Florida there is no legal separation. You can agree in writing to all issues (i.e. a contract) to later admit into evidence in court.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    You can file but if your spouse says that the marriage is over and no chance of getting back together, the divorce action will prevail.
    Answer Applies to: Connecticut
    Replied: 6/20/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    The divorce holds and only needs one party to request it. To keep it as a legal separation, both of you have to agree to that. If either party wants it to be a divorce, it is a divorce. No need to file another case - you can agree to change it to separation under the same divorce case number. Hope that helps.
    Answer Applies to: Wisconsin
    Replied: 6/20/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    While you can file for a separation only, why bother if your spouse no longer wants to be married at all? I suggest you speak to a matrimonial attorney right away and sort your own feelings out. Good luck.
    Answer Applies to: New York
    Replied: 6/20/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    Florida does not have a "legal separation". If he or she has filed for divorce, you need to respond timely to the papers. You can always deny that the marriage is irretrievably broken. However, if the other party wants a divorce, there really isn't any way to stop them.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    In Georgia, it only takes one party wanting the divorce for it to be granted.
    Answer Applies to: Georgia
    Replied: 6/17/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    If one side wants a divorce, that is what is going to happen. There doesn't need to be an agreement. If you are in my area and are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/17/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    It won't do you any good to file for legal separation if your spouse has already filed for divorce. It will be a divorce.
    Answer Applies to: Washington
    Replied: 6/17/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    If your wife wants a divorce, she will get a divorce. Try discussing the advantages of a legal separation with her. You should seek local counsel as soon as possible.
    Answer Applies to: Ohio
    Replied: 6/17/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    Any defendant can file a counterclaim, but in Nevada, at least, it would be futile to file a counterclaim for separation, since the divorce will essentially always be granted as a matter of right; the only lengthy delays I've seen, during decades of practice, is for the completion of ongoing medical care that would not be possible because of loss of insurance if the divorce was granted.
    Answer Applies to: Nevada
    Replied: 6/17/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    In Georgia there is no such thing as a legal separation. You do not need to agree on the issues; that is a contested divorce. Once your spouse files, the divorce will proceed. You can file a counterclaim for divorce to make sure your rights are protected.
    Answer Applies to: Georgia
    Replied: 6/17/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    If your spouse files first in the same county courthouse, then the court will proceed with the divorce. If you file first, and then your wife files an "amended petition" to amend the legal separation into a divorce, again, the court will proceed with the divorce. Keep in mind that both processes are identical, except at the end the parties are divorced, not still married (as is the case in a legal separation). Thus, if one party wants a divorce, the court will process the case as a divorce. I.e., you can't force someone to stay married to you. It only takes one party in California to get a divorce if that is what he/she wants.
    Answer Applies to: California
    Replied: 6/17/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    If one spouse wants a divorce, then there will be a divorce and not a legal separation. Both spouses must agree on a legal separation.
    Answer Applies to: California
    Replied: 6/17/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    As a general rule, a divorce case supersedes a legal separation case. Discuss this with your lawyer. Your divorce will almost always go better with counsel than pro se.
    Answer Applies to: Georgia
    Replied: 6/17/2011
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