Filing for legal separation is a life-changing decision that impacts the individuals in a relationship significantly. Learn about legal separation.
What States Allow Legal Separation?
All states “allow” legal separation except Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas. Several states recognize legal separation as a formal contractual arrangement, like a marriage or adoption.
Some states that recognize legal separation call it something different. For example, in Maryland legal separation is called “limited divorce.”
Other states do not have state-recognized legal separation but a private legal separation contract between parties will be enforceable.
What “legal separation” is and what is required for a legal separation agreement to be recognized varies greatly state-to-state – consult with a divorce attorney in your state about the requirements of legal separation and whether legal separation is right for you.
Filing a legal separation agreement is only required in those states that recognize legal separation as a formal status. In New Jersey, where there is no state-recognized legal separation, no filing is necessary – a legal separation is simply a private contract.
Married couples often enter into private legal separation agreements to organize things like initial custody, who pays what bills, and support arrangements prior to divorce. Unmarried couples, especially those with children, use a legal separation agreement for this purpose as well. Married couples who cannot divorce, for example, because of religious reasons, can use a separation agreement to part ways in all ways but stay legally married.
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Generally, states that formally recognize legal separation will require that one or both parties reside in that state for a period of time, just like divorce. This varies state-to-state – consult a local attorney or visit the court’s website in your jurisdiction for more information about residency requirements.
Again, Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not recognize any form of legal separation, state-sanctioned or private. But in other states that do not formally recognize legal separation, the parties may enter into a private legal separation contract regardless of residency.
Separation Agreement & Petition
In states that formally recognize legal separation, the parties must file a “complaint” or “petition” as well as the separation agreement itself. Assuming the parties agree to all terms, they will have signed the agreement and had it notarized. There will likely be a filing fee.
The court clerk (or whoever accepts separation agreements in your state) will file it for approval by a judge. Once a judge has reviewed and approved it, the separation agreement will be on record in the court clerk’s office.
Do You Have To File For A Legal Separation?
No one “has to” file for a legal separation. However, if you live in a state that recognizes legal separation as a state-sanctioned status, there will be filing requirements with the state and likely a filing fee.
An attorney in your area will have this information for you. Also, the website for the court in your jurisdiction will likely have information and documents that you can complete and file with the required fee.
Does A Legal Separation Have To Be Filed In Court?
It is usual for jurisdictions to require that legal separation documents be filed with the court clerk for approval by a judge.
Do You Need A Lawyer To File For Separation?
While no one is required to retain an attorney to file for legal separation, it is wise to get one. Why? Well, a legal separation agreement is only necessary when there are big-ticket items on the line, such as alimony, child support, child custody, and distribution of joint property. To ensure that you are exercising your rights to the fullest extent possible, it is always advisable to retain an attorney.
If you are filing a legal separation agreement as a precursor to divorce, it is important to note that anything you agree to in the separation agreement may set a precedent in your divorce.
What Happens When You File For Separation?
In most states where legal separation is recognized, you will be bound by the separation agreement and must follow its terms unless and until you petition the court for changes to those terms. If you fail to adhere to the agreement, your ex can petition the court to force you to comply. A legal separation agreement is binding upon both parties, so consider that carefully as you contemplate entering into one.
In California, for instance, parties entering into a separation agreement are treated as if they are divorced, in the following ways:
- Each party’s income and debt will be their separate property
- The parties may no longer file joint tax returns
- The non-employee party might lose access to any group health insurance coverage provided through the other party’s employer
- The parties have no right to interstate inheritance
But unlike the spouses that get divorced, legally separated spouses in California cannot remarry because they are still legally married.
This is but one example and again, the law varies state-to-state. If you are considering entering into a legal separation, consult with an attorney in your jurisdiction to ensure that your rights are protected.
This post was contributed by Katherine K. Wagner, Esq, a Somerset County, NJ divorce lawyer.
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