Actress Megan Fox filed for divorce from husband Brian Austin Green last August, but it seems the two are reconsidering. The two are currently expecting their third child together, and recently celebrated the up-coming birth with a vacation to Hawaii. So… is the divorce still on?
Fox and Green Reconsidering Divorce?
Pictures of Fox and Green on their vacation show the pair holding hands and strolling along the beach. At one point Green cradled her bare baby bump while Fox beamed. The two are parents to two sons already – Noah and Bodhi. And as Green told People magazine recently “You know, nothing is planned. None of them are ever planned. You kind of just go with it. At my age, to be having three babies, is crazy. I’ll be 43 this year.” Is the couple willing to try it again? Are they reconsidering moving forward with divorce? It wouldn’t be the first time a couple decided to stay together after flirting with divorce.
While it may seem to be an uncommon story, some couples do decide that their wedded bliss will not end in divorce, even when it seems to be headed that direction.
Reconsidering Divorce? Maybe Legal Separation
For couples that unsure of if divorce is the next step or even those that are leaning towards divorce but are reconsidering, legal separation can provide a safe “middle ground.” Legal separation is a great tool for spouses that are unsure about divorce because it allows couples to live apart and take a “break” if needed, while also ensuring that each spouse’s legal rights are protected.
A couple is still technically married during separation, thus allowing them to live separately while retaining legal rights to property, child custody, and other agreements. Legal separations also allow spouses to maintain their married legal status in order to still receive health care or other rights.
Legal separations can also be called: “judicial separation”, “separate maintenance”, “divorce a mensa et thoro“, or “divorce from bed-and-board.” All these terms refer to the legal process by which a married couple formalizes a de facto separationwhile remaining legally married.
Legal Separation Agreement
A legal separation can be helpful because it clearly outlines each spouses roles. For this reason, it’s advised that you work out a legal separation agreement. This legally binding agreement decides all aspects of a marriage, including: child support and visitation, property division, and spousal support. Even if a legal separation does not end in a divorce, it is still smart to protect yourself during this time. Here is what is decided in a legal separation agreement:
Spousal Support – If you are paying spousal support to your spouse the payments can be deducted at tax time – but only if they are listed under the agreement. If there is no legal agreement, this money cannot be deducted.
Benefits – With legal separation can retain certain benefits that were available during the marriage, such as health insurance. This is something that should be included in the agreement.
Home – If you and your spouse own a home together, you’ll want to outline who will pay for the home, as well as the maintenance of the home, such as utilities and lawn care. You’ll also want to outline who is able to live in the home.
Joint Accounts – Most couples share joint checking, savings, and credit accounts. A legal separation agreement will outline who has access to those joint accounts. It might also stipulate that the joint bank accounts be closed, thus forcing each spouse to obtain their own personal accounts. It might also outline who needs to pay what on those joint credit accounts.
Protection from Acquired Debt – A legal separation agreement will also shield you from being responsible for debt that is acquired during your separation. This will vary by state, so be sure to work with an attorney when drafting this agreement, as they will be able to advise you on your legal rights.
Child custody and visitation, as well as child support, may be decided as part of the legal separation. A spouse is also able to ask the court for a protective order if he or she feels the other spouse is a threat to the child.
Additional Considerations for Legal Separations
Here are some additional things to remember about legal separations:
Remember that if you want to move forward with a divorce, one of the spouses must have resided in the county where the action is filed for at least three months and within the state for at least six months prior to filing. But if you are seeking a legal separation you are not required to meet these requirements. You will still need to meet the requirements of divorce if you decide to move forward with divorce after your legal separation.
Legal separation takes effect immediately after it has been ordered.
If you’re in California you have another option for a “separation agreement.” This is a legally-binding contract, just like a legal separation agreement, but does not require court involvement.
Drafting a Legal Separation Agreement
Working with a lawyer can be helpful when drafting a legal separation agreement. This is the perfect time to begin thinking what assets you have that will eventually need to be divided, in addition to starting your new life as a single person. Working with an attorney can help ease the tough period you and your spouse and family are experiencing.
If a legal separation sounds like the next step for you and your spouse, here are the steps you will take to acquire a legal separation:
- Decide on grounds for your separation. The grounds can either be: incurable insanity or irreconcilable differences that have caused an irremediable breakdown of the marriage.
- Fill out a Form FL-100 Petition that includes options for with a divorce (dissolution of marriage) or legal separation. You will also need to provide any information pertaining to minor children and property. This will allow you to ask the court to make orders regarding these things.
- If you have children under 18, you will need to complete Form FL-105/GC-120. This is a Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act, which provides information to the court that will enable it to establish if it has jurisdiction over a child. This will be relevant if a parent lives in another state and has already started proceedings for child custody in that state.
- Have your forms reviewed by a family law attorney or help-center.
- File Form FL-100 at your local county court and pay any necessary fees. If you receive public benefits or have low income, you might be eligible for a fee waiver.
- Serve your spouse with a copy of the court papers. There are various ways this can be completed – either through a lawyer or a process server. There will need to be proof of the serving.
Moving Forward After Legal Separation
Your legal separation will end in either one of two ways: divorce or reconciliation.
If you and your spouse decide to move forward with divorce, you still need to file a divorce petition and go through the process of divorce. Since all aspects of a marriage have been decided in your legal separation agreement, most likely you will be able to file an uncontested divorce. If not, you might need to go through the trial system to reach an agreement. Remember that legal separation does not mean the same thing as divorce. So while you and your spouse might be legally separated, you are still legally married until a judge agrees and signs your divorce agreement.
If you and your spouse decide to reconcile, you are able to reverse the separation agreement through a “motion to dismiss.” This motion will need to be filed with your local Clerk of Court office. You might want to consult a divorce attorney to ensure that you have all the proper documents accurately filled out.
Both spouses will need to sign papers that attest to the fact that you are ending the separation. You will need to include the file number of your separation during these filing. You might also need to explain why you have decided to cancel the separation.
You will then receive a hearing date that you and your spouse will need to attend to officially cancel the separation.
Once the legal separation is cancelled, all marital property returns to being considered shared property. Any child custody arrangements that were created as a part of the separation will be cancelled.
Working with a Family Law Attorney if You are Reconsidering Divorce
Working with a family law attorney can help ensure you do every step required for a legal separation or divorce. They will handle getting all the paperwork completed and filed, as well as any serving of papers that might be needed. Working with an attorney can help ease what can be a very difficult process.
Law Offices of Korol and Velen, Certified Family Law Specialists
6300 Wilshire Blvd., Suite 1430,
Los Angeles, CA 90048