The term separated is often used to describe married couples who are no longer living together. Legal separation, however, is a specific legal status similar to divorce. In fact, the only difference between legal separation and divorce is that the spouses aren’t able to remarry during legal separation.
For this reason, and because some states (Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas) do not recognize legal separation as a legal status, legal separation is relatively uncommon.
What is legal separation?
A legal separation is a court order declaring that the current relationship between you and your spouse is such that you are unable to live together, thus you have decided to live separately while maintaining your marital status. This is in contrast to a trial separation in which couples informally separate for a period of time without going through the legal process to formalize the separation.
A legal separation can be a tool for couples who have no plans to resume their marital relationship but are not ready to dissolve their marriage. This may be because one or both spouses have religious objections to divorce, or want to preserve their eligibility for health care and other benefits.
Furthermore, couples who haven’t lived in a state long enough to meet the residency requirement for divorce may choose to use legal separation as a step in the divorce process.
What rights do i have when legally separating from my spouse?
Legal separation requires a court order and entitles the spouses to the same rights as a divorce, namely:
- The division of marital property – the right to determine how marital assets and debts will be allocated among them
- Child custody and visitation – the right to determine how custody of the children will be shared between them
- Child support – the right to determine how child support will be arranged. Typically, the non-custodial parent will be required to pay child support to the custodial parent
- Alimony – the right to determine if and to whom alimony will be paid during and after the separation process.
Couples are allowed to come to terms with these issues themselves and formalize their arrangements in what is referred to as a separation agreement. If a judge finds the agreement to be fair to both parties, and if there are children involved, in the best interest of the children, it will be incorporated into the final court order.
However, if the spouses cannot come to an agreement on these aspects of the separation, a judge of the family court will make these determinations for them in a manner that he or she believes is equitable and in the best interest of the children.
Contact an experienced family law attorney
The decision to get a divorce is emotional and highly personal. Legal separation is an alternative that many people choose when considering divorce.
However, no two situations are the same and there are no formulas to help you decide if legal separation is the right move for you.
An experienced family law attorney in the state in which you live can explain how your state treats legal separation and help you determine if it is a reasonable alternative to divorce in your case.