In family law, the terms "separation" and "legal separation" have different meanings. An informal separation means that you and your spouse have decided to live apart without any intervention by the court. A legal separation occurs after a court proceeding in which the judge issues an order granting the separation. This formal separation legally changes your marital status.
Legal Separation Differs From Divorce
A divorce ends your marital relationship. A legal separation leaves the marriage intact, but you and your spouse agree to live apart. A divorce and a legal separation are similar in that you and your spouse may ask the court to divide your marital assets. The court may also decide child custody issues, child support and alimony. The main difference between divorce and legal separation is that you and your spouse are still legally husband and wife during the separation period. This means you may still be entitled to certain benefits, such as Social Security.
Divorce Requires a Separate Hearing
If you and your spouse later decide to get a divorce, you will have to file a divorce petition and go through the divorce process. The divorce will be uncontested if you mutually agree on all issues and contested if you are unable to reach an agreement on marital issues without the court's help. Although separated, you and your spouse are legally married until the final divorce decree is signed by the judge.
Legal Separation Requires Residency
To file for a divorce, you must be a resident of the state in which your case will be heard. A petition for a legal separation has this same requirement. The court cannot hear a legal separation case unless it has jurisdiction over the parties to the case. Either you or your spouse must be a resident of the state in which the legal separation hearing will occur. If you neither of you are a resident of the state, the court has no jurisdiction over the case and cannot grant a legal separation.
Legally Separated Affects Tax Filing Status
The Internal Revenue Service establishes the rules for federal tax filing status. Your tax filing status is determined by your marital status on the last day of the calendar year. If you were legally separated on December 31, you are considered single for tax filing purposes and both your and your spouse must file your taxes as single persons.
A Family Law Lawyer Can Help
The law surrounding legal separation is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a family law lawyer.