Legal Separations Text Size:

If you are uncertain about divorce but don't want to continue living with your spouse, legal separation is an alternative. Similar to a divorce, a legal separation decides custody, child support, spousal support and the division of assets and liabilities. In contrast to a divorce, you will remain married but will live separate and apart from your spouse.

What Is a Legal Separation?

A legal separation is a court determination of the rights of responsibilities of a husband and wife who wish to remain married but who desire to live separate and apart from each other. The court will review and adopt the parties' separation agreement or will make determinations on child custody, visitation, child support, spousal support or maintenance, property division and responsibilities for insurance coverage and household bills.

Most states permit legal separations. However, you should consult an attorney because states vary considerably in the requirements for obtaining a legal separation. For example, states vary on such requirements as:

• Whether the parties must live separate and apart prior to filing a petition for a legal separation
• Whether the party petitioning for a legal separation must prove grounds similar to a divorce
• Whether the parties must mutually agree or consent to a legal separation
• A finding that there is a reasonable likelihood that the marriage can be preserved
• A cooling off period between the initial filing for a legal separation and a motion to proceed
• Mandatory participation in marital counseling

Legal Separation vs Divorce

The only difference between a divorce and a legal separation is that a legal separation does not terminate the marriage. And, if you later decide on a divorce, you must file an action in court again and likely pay additional attorney's fees and costs. So, why get a legal separation at all?

There are several legitimate and rational reasons for choosing legal separation over divorce:

• You or your spouse have religious beliefs that oppose divorce.
• You will soon become eligible as a spouse for certain government benefits such as Social Security.
• You will be able to retain eligibility for certain health care benefits or other insurance benefits if you remained married. Careful! This is not always true.
• You and your spouse will receive favorable tax benefits if you remain married.
• You believe that there is a chance to reconcile your marriage, but you just need time apart.
• You want a court-approved separation agreement while you and your spouse satisfy a required waiting period before you file for divorce.
• It is less stressful for you or your spouse to negotiate a separation agreement for a legal separation than it would be for a divorce.

Protect Your Interests

• Keep your finances separate. Open individual accounts and close or freeze all joint accounts.
• Make sure your personal property is in your possession. Anything you leave with your spouse during the separation period will likely stay with that spouse in a later divorce action unless there is change in circumstances.
• Remove your name from any leases, titles, mortgages, loans, utility accounts and credit card accounts that your spouse will be responsible for.

After property and debts are divided in the separation agreement, any income from investments you make from your assets will belong to you and will not be considered marital property if you should later file for a divorce. Of course, this will also apply to your spouse.

When you negotiate a separation agreement, keep in mind that the agreement will probably not change that much when you or your spouse later convert the legal separation into a divorce. Make sure you protect your interests!

Questions for Your Attorney

• If my spouse and I legally separate, and then go ahead and seek a divorce, will terms of our separation agreement regarding alimony, child support, and child custody still apply?
• I'm concerned about employee benefits as a spouse if I enter into a separation agreement. Can my spouse's employer choose how to handle this, or does federal or state law control the situation?
• If my spouse and I are legally separated, does that status affect our financial affairs? Are we regarded as married or are we seen as individuals?

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