Family Law

What You Need to Know About Legal Separation

By Kristina Otterstrom, Attorney
Understanding what an official separation really means.

A voluntary, information separation where you and your spouse live apart is not the same thing as a legal separation. With this type of informal or trial separation, you and your spouse have chosen to live apart for an unspecified period of time. There are no legal ramifications to a short trial separation. A long term separation may affect your property or custody rights. By contrast, a legal separation is quite different than both of these scenarios. A legal separation is formally recognized by a court and actually changes marital obligations toward one another. There are situations where you may want to avoid a legal separation, so it's best to consult a local family law attorney for advice.

How is a Legal Separation Different from a Divorce?

A legal separation is an alternative to divorce. While a divorce permanently ends the marital relationship, a legal separation leaves your marriage in place. But just like in a divorce, with a legal separation, you can ask the court to divide property and debts, and resolve custody, support, and alimony issues. During your legal separation, you and your spouse are still legally husband and wife, which entitles you to certain protections and benefits.

What are the Benefits of a Legal Separation?

Couples have different reasons for legally separating. For example, some couples may feel that they need some time apart, but aren’t ready to officially divorce. A couple may choose a legal separation to allow one spouse to continue receiving social security benefits from the other spouse's work record or health insurance coverage through the other's employer—a divorce would terminate eligibility for all spousal benefits.

Can I Obtain a Legal Separation?

If you live in a state that allows legal separations, you may be able to get one. Similar to a divorce, you'll need to meet certain residency requirements to qualify for a legal separation. You’ll also need to file and serve separation paperwork, which is almost identical to the divorce petition paperwork. The process is relatively simple if you and your spouse can agree on the terms of your legal separation.

In most states, a legal separation is for a limited amount of time. For example, in Utah, couples can have a legal separation that lasts for up to one year. After that time period, any legal recognition of the separation (including alimony or support orders) will need to be revisited and can be made part of a final divorce order.

How Will a Legal Separation Affect My Tax Status?

One of the most complicated areas of legal separation is the tax consequences. Many couples hope to stay married—although separated—as a way to continue to file taxes jointly. However, depending on the particular laws of your state, if you're legally separated, you may be required to file taxes as a single person. If you have questions about how a legal separation will affect your taxes, you should contact a CPA, accountant, or other tax expert for advice.

Questions for Your Attorney

  • My spouse and I have been married less than a year and want to get a legal separation. Have we been married long enough to qualify?
  • I definitely want to divorce my husband. Is there any reason I should consider getting a legal separation before seeking a divorce?
  • My spouse and I live in different states. Where should I file for a legal separation?

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