{"id":13026,"date":"2017-01-30T11:23:38","date_gmt":"2017-01-30T11:23:38","guid":{"rendered":"http:\/\/www.marriage.com\/advice\/?p=13026"},"modified":"2026-03-10T06:50:02","modified_gmt":"2026-03-10T06:50:02","slug":"what-is-legal-separation","status":"publish","type":"post","link":"https:\/\/www.marriage.com\/advice\/separation\/what-is-legal-separation\/","title":{"rendered":"What Is a Legal Separation? Pros and Cons You Should Know"},"content":{"rendered":"\n

\"couple-with-a-broken-heart\"<\/p>\n

When it comes to tough times in a marriage, couples often find themselves looking for a way out. <\/span><\/p>\n

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

This is known as<\/span> separation<\/span><\/a>. But are you aware of the term ‘legal separation’? In this article, we will study what is a legal separation and what formal requirements a couple should consider while separating.<\/span><\/p>\n

<\/span>What is a legal separation?<\/b><\/span><\/h2>\n

What does legally separated mean?<\/span><\/p>\n

Legal separation is available to a married couple who are no longer able to cohabitate due to a breakdown in the marital<\/b> relationship<\/b><\/a> or when one spouse is suffering from incurable insanity. <\/b><\/p>\n

Under these circumstances, the couple will choose to live separately under formal terms, either agreed to between the parties or ordered by the court.     <\/span><\/p>\n

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<\/b>; however, they are not divorced or have not dissolved their domestic partnership yet.<\/span><\/p>\n

Since a<\/span> legal separation<\/span><\/a> does not end a marriage or domestic partnership, a legally separated couple cannot remarry or enter into a partnership with someone else. <\/span><\/p>\n

Rather, separating legally acts as a middle ground between marriage or a domestic partnership and divorce or dissolution of a domestic partnership.<\/span><\/p>\n

Dr. Jennifer Schulz<\/a>, PhD in Psychology, shares, <\/span><\/p>\n

A couple may choose to legally separate for a period to determine if time apart, with each party focusing on self-improvement, allows them to eventually come back together and save the marriage.<\/span><\/p><\/blockquote>\n

<\/span>How long does a legal separation last?<\/b><\/span><\/h2>\n

If you are legally separated from your spouse, you may remain so for as long as the two of you desire.<\/b> A legal separation is reversible. How long you can be legally separated is your own judgment call. <\/span><\/p>\n

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 a new relationship to lead to marriage, the estranged couple has to get a divorce first.<\/span><\/p>\n

<\/span>Legal separation vs divorce: Know the difference<\/b><\/span><\/h2>\n

Let us understand more about what a legal separation is by differentiating it from the process of divorce. <\/span><\/p>\n

Legal separation and divorce<\/b><\/a> are distinct legal processes. <\/b><\/p>\n

We already know the <\/span>legal separation<\/b> definition. It is a process that <\/span>allows couples to live separately while still being married<\/b>, with provisions for financial and child-related matters. <\/span><\/p>\n

Divorce<\/b>, on the other hand, <\/span>dissolves the marriage entirely<\/b>, terminating the legal relationship between the spouses and addressing similar issues.<\/span><\/p>\n

Dr. Schulz<\/a> adds, <\/span><\/p>\n

Separation has the potential to be temporary and lead to a resurrection of the marriage, whereas divorce is final and means the marriage is over.<\/span><\/p><\/blockquote>\n

<\/span>What should my separation agreement talk about?<\/b><\/span><\/h2>\n

Before you consider how to get a legal separation, think about a separation agreement. A spousal agreement must consist of some key details, including the 5 major points elaborated below.<\/span><\/p>\n

1. Spousal support<\/b><\/h3>\n

Similar to divorce, separating legally involves addressing marital assets, debts, child custody and visitation, child support, and spousal support. <\/span><\/p>\n

When the two spouses, who wish to be legally separated, can work together to reach an agreement about the respective terms, they will often prepare and submit a legal separation agreement to the court.<\/b> <\/span><\/p>\n

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.<\/span><\/p>\n

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. <\/span><\/p>\n

Since states have latitude when it comes to supporting laws, it is important to recognize that the laws will vary.<\/span><\/p>\n

\"unhappy<\/p>\n

The bottom line is that each state (assuming it recognizes legal separation) will have its own laws related to spousal support or maintenance, thus determining the outcome of a request for support is difficult.<\/b> <\/span><\/p>\n

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.<\/span><\/p>\n

2. Custody of children<\/b><\/h3>\n

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

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.<\/span><\/p>\n

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. <\/span><\/p>\n

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.  <\/span><\/p>\n

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.<\/span><\/p>\n

3. Visitation schedules<\/b><\/h3>\n

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. <\/span><\/p>\n

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<\/b>. Ultimately, the plan will need to be created in the best interest of the children.<\/span><\/p>\n

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. <\/span><\/p>\n

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.<\/span><\/p>\n

4. Child support<\/b><\/h3>\n

The law guiding eligibility for <\/b>child support<\/b><\/a> 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.<\/b><\/p>\n

Child support payments solely revolve around who has custody of the child and who does not.<\/p>\n

A parent who has total custody of the child may be a stay-at-home dad or mum. In that case, he or she doesn’t have enough funds to take care of the child’s needs.<\/b><\/p>\n

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.<\/span><\/p>\n

5. Debt division<\/b><\/h3>\n

The division and resolution of debts can be complex and highly disputed in many separations and divorces across the United States.<\/span><\/p>\n

Debts accumulated during the marriage are typically shared, regardless of individual names associated with them.<\/b><\/p>\n

To ensure clarity and documentation, it is advisable for both parties to make copies of financial records. These records encompass mortgages, credit cards, bank loans, lines of credit, bank statements, and all other relevant financial information pertaining to the marriage.<\/span><\/p>\n

If you’re willing to work on your marriage while being separated, watch this video for some insight:<\/span><\/i>
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