What is Legal Separation?

couple-with-a-broken-heart

When it comes to tough times in a marriage, couples often find themselves looking for a way out. 

Sometimes they have made the decision that there is nothing left, and they seek finalization through divorce, while other times, the spouses may believe that living apart for some period of time may result in fixing the relationship. 

This is known as separation.

What is legal separation

Legal separation is available to a married couple who is no longer able to cohabitate due to a breakdown in the marital relationship or when one spouse is suffering from incurable insanity. 

Under these circumstances, the couple will choose to live separately under formal terms either agreed to between the parties or ordered by the court.     

Separating legally represents an in-between area in the law in which a married couple or couple in a domestic partnership is not living together as a married couple or domestic partners; however, they are not divorced or have not dissolved their domestic partnership yet.

Since a legal separation does not end a marriage or domestic partnership, a legally separated couple cannot remarry or enter into a partnership with someone else. 

Rather, separating legally acts as a middle ground between marriage or a domestic partnership and divorce of dissolution of a domestic partnership.

Also Read: Things You Need to Know About Separation Rights for Married Couples

How long does legal separation last?

If you are legally separated from your spouse, you may remain so for as long as the two of you desire. A legal separation is reversible. How long can you be legally separated is your own judgment call. 

To be legally separated from your spouse, there is actually no need for you to get a divorce at some point. Dating while legally separated could be a possibility, but for it to transpire to marriage, the estranged couple has to get a divorce.

Separation vs. legal separation

When married couples separate, it is important to understand that there is separation, and then there is legal separation. Separation simply refers to the spouses living apart from one another. 

This isn’t a legal matter and doesn’t require filing documents with or having to appear in court.

This form of separation, since not recognized as a legal separation, may result in the spouse’s legal rights being impacted (since in the eyes of the law, you are still married).

Separation legally is different from separation as it is a legally recognized status of your marriage. 

Thus, it requires filing documents with and appearing in court (much like the process of divorce). It is also important to note that separating legally is viewed as independent action and is not considered to be the first step in the divorce process.

Legal separation process

unhappy married family signing separation papers

Wondering how does a legal separation work? And how to get a legal separation?

The process of legally separating is somewhat like that of the divorce process in that the couple either requests that the court decide the terms of separation or a legal separation agreement is presented to the court for approval. 

In either case, making the decision to legally separate will require that the spouses work out arrangements for such things as division of property, child support, child custody and visitation, spousal support, debts, and bills.

Moreover, the terms of the separation will control how assets will be divided or how child-rearing and support responsibilities will be carried out.

Regardless, if either the terms of separation are contested or uncontested, any issues decided or approved by the court will remain in effect until either the court accepts a modification of terms or the couple finalizes their divorce. 

At which time, the final judgment of divorce would take precedence over the conditions of the separation.

Legal separation laws

Separation Law is a branch of family law that is related to divorce law. 

It embraces processes, rules, and regulations that married couples have to follow when they are no more interested in living together as a married couple but are yet to decide whether or not to go with the divorce proceedings.

The conditions for separating legally are frequently the same or related to those required in the particular state to secure a divorce. A number of states recognize their type of legal separation as a limited divorce, while others refer to it as divorce from bed and board.

On a number of occasions, if the couple afterward seeks termination of marriage, the written agreement filed for separating legally may be transformed or converted to a divorce settlement.

Laws governing Legal Separation differ from state to state, and a few states have no such laws in place. In states that have no legal separation laws in place may tackle these issues differently. 

A number of states still permit the spouses to enter into a written agreement that takes care of a few or all of these issues, while others merely permit this provision during the time process of divorce is going on.

It is significant to get acquainted with your state’s specific laws on this issue before starting the process. At present, the states that have no legal separation laws are Texas, Florida, Pennsylvania, Georgia, Louisiana, Iowa, Mississippi, Idaho, and Delaware.

You’d need to visit the US Divorce Law Center to get information on the specific separation laws that apply to each of the states where the law is recognized.

Regardless of why you want to legally separate, most states will require you to do more than simply live apart. 

To be legally separated in most states, you must go through a process very similar to a divorce and which involves the same issues, namely:

  • Child custody and visitation
  • Alimony and child support
  • The division of marital property and debts

Hence to ensure that you can have an amicable and smooth separation, you must learn the necessary steps to file for separating legally.

What should my separation agreement say?

Legal separation

A spousal agreement must consist of some key details, including the ones elaborated below.

  • Spousal support

Similar to divorce, separating legally involves addressing marital assets, debts, child custody and visitation, child support, and spousal support. 

When the two spouses can work together to reach an agreement about the respective terms, they will often prepare and submit a legal separation agreement to the court. 

This is certainly a preferred route as it eliminates much of the tension, emotions, and costs when the couple’s disagreements result in the court making the decision.

When it comes to spousal support, it is usually considered a factor of divorce. When separating legally, some states may have laws making it possible to obtain separate maintenance, which is similar to alimony

Since states have the latitude when it comes to supporting laws, it is important to recognize that the laws will vary.

The bottom line is that each state (assuming it recognizes legal separation) will have their own laws related to spousal support or maintenance, thus determining the outcome of a request for support is difficult. 

If a state does recognize legal separation and permits spousal support during the separation, the result will be tied to the needs of the spouse and the ability to pay by the other spouse.

  • Custody

When it comes to making the decisions about and for the minor child, the court will assign legal rights for child custody to one or both of the parents. These are decisions impacting the child’s environment, such as where they will go to school, their religious activities, and medical care. 

If the court wants both parents to be involved in this decision-making process, they will most likely order joint legal custody. On the other hand, if the court feels that one parent should be the decision-maker, they will likely order sole legal custody to that parent.

When it comes to making decisions about with whom the child will live, this is known as physical custody. This is distinguishable from legal custody as it focuses on the day to day responsibility of caring for your child. 

Like legal custody, the court may order joint or sole physical custody and visitation rights for both. In many states, the laws are intended to ensure that both parents are involved with their children after divorce.  

Thus, absent certain reasons (e.g., criminal history, violence, drug and alcohol abuse, etc.) that may place the child in danger, courts will often look towards a joint physical custody model.

  • Visitation schedules

It is generally beneficial if the spouses can decide who gets custody during a separation, negotiate a separation and child custody as well as visitation rights agreement without requiring a court hearing. 

If both spouses agree to the terms, the court can review the plan, and if accepted, will be incorporated into a custody order and separation legal rights for the estranged parents. Ultimately, the plan will need to be created in the best interest of the children.

In some visitation schedules, if the noncustodial parent has a history of violence, abuse, or drug and alcohol abuse, there will be some restrictions added to their visitation rights, such as they may be required to have someone else present during their visitation time. 

This is referred to as supervised visitation. The individual overseeing the visitation will generally be appointed by the court or, in some situations, be decided by the parents with the court’s approval.

  • Child support

The law guiding eligibility for child support varies from state to state. The amount is basically determined by a judge in family court unless both parents mutually arrive at a consensus amount.

Child support payment solely revolves around who has the custody of the child and who has not.

A parent who has total custody of the child may be a stay-at-home dad or mum. In that case, he or she hasn’t got enough funds to take care of the child’s needs.

It could also happen that the custodial parent only takes up part-time employment to have more time to take care of the child’s needs. Child support is, thus, structured and calculated in a way that reflects this reality and needs.

What is a legal separation agreement?

Legal separation follows the same process as a divorce, which typically means filing the paperwork with the court to request a separation and proposing the terms of a separation agreement.

A separation agreement is a document comprising the understanding that the parties have in regards to their separation and that addresses the same major issues that need to be resolved before a divorce can be finalized.

Firstly, if the couple has children, the agreement must give specific details regarding how custody will be handled, i.e., the couple’s parenting plan? A judge will scrutinize the separation plan to determine whether or not it serves the children’s best interest and to what extent.

Secondly, a separation agreement must address how the couple’s property and assets will be divided, including both tangible and intangible assets, retirement accounts, and other finances. 

It must also address how their debts and liabilities will be allocated, which can often present more of a challenge for couples. 

Furthermore, a separation agreement must address whether or not either spouse will pay spousal support to the other, and if so, in what amount and for how long.

Also watch: Can being separated save a marriage.

Pros and cons of legal separation

Couples may choose to be legally separated rather than getting a divorce for various reasons. But before they make a decision, one must consider the pros and cons associated with separating legally and if it would be a better option than a trial separation or divorce.

Pros

  • One significant benefit of separating legally is that one of the two individuals from the couple have a religious obligation that doesn’t permit them to get a divorce. In such a scenario, separating legally allows the couple to not violate the religious beliefs and live separately.
  • When separating legally, couples are able to make the same decisions and choices that they would otherwise make during a divorce. It is certainly a great option for couples who do not want to get divorced but want to live separate lives.
  • A few people might have the option to remain on their partner’s medical coverage plan in the event that they are legally separated rather than being divorced. There likewise might be other monetary advantages to separating legally over divorce.
  • Legal separation presents the opportunity for reconciliation or resuming the marriage.
  • The IRS publication 504 allows the legally separated spouse to deduct spousal support, and also, the other benefit is that you can still file jointly on your taxes.

Cons

  • With similar legal requirements as a divorce, paperwork, litigation, and trial proceedings, separating legally can be as much taxing as a divorce. 
  • The complexities of separating legally can put a lot of burden on an already delicate relationship.
  •  Due to the cost and commitment needed for separating legally, a trial separation can prove more beneficial for couples who are trying to figure out the direction their marriage is heading.
  • States like Tennessee and Maryland consider sexual relationships with a new partner as adultery, which can impact alimony payments or the division of property if the couple decides to file for divorce later.
  • Another disadvantage of separating legally is that some states require you to go through the entire legal process in case you do decide to get a divorce.

Conclusion

If you pursue the route of legally separating, just as with divorce, custody, visitation, child and spousal support are subject to final orders, and assets and debts are permanently divided.

If you are seeking separation, it is advised that you seek out the guidance of a family attorney. This will be an opportunity to review your current situation to decide if separation, legal separation, or divorce is the best choice for you.

Want to have a happier, healthier marriage?

If you feel disconnected or frustrated about the state of your marriage but want to avoid separation and/or divorce, the marriage.com course meant for married couples is an excellent resource to help you overcome the most challenging aspects of being married.

Take Course