If you would like to separate from your spouse but you are not prepared to initiate a divorce action, you can file for legal separation in most states. You will need to prepare a petition you submit to the court in which you can ask for specific relief, such as the division of your marital property or a particular child custody arrangement. Here is what you need to know about filing for legal separation.
Reasons Why to File a Legal Separation and Not a Divorce
A legal separation can establish to the state that you and your spouse are no longer living together. It can also establish short-term arrangements. Some couples choose to separate instead of divorce because they are not ready for a divorce. They may want to attempt a trial separation to see what life is like apart.
In other situations, spouses may not pursue a divorce because of religious reasons. In other situations, spouses may no longer want to continue a romantic relationship together but may remain legally married in order to:
- Continue receiving healthcare benefits
- Continue receiving Social Security benefits
- Work toward the 10-year requirement to draw on a spouse’s Social Security record
- Maintain eligibility for immigration status
Benefits of a Legal Separation
Going through the process of legal separation can provide a number of important benefits to a family, such as:
- Greater certainty during a transitional period
- Ability for spouse and children to remain on the other spouse’s healthcare plan
- Formal arrangements during the period of separation
- A clear separation date to divide finances and property
- Ability to retain income tax benefits
What States Allow Legal Separation?
Most states allow and recognize legal separation. Those that do not are:
“Legal separation” may go by different names. For example, Maryland refers to this legal arrangement as a “limited divorce.” Some other jurisdictions use the term “divorce from bed and board” instead of “legal separation.”
Before you can get a legal separation, you must usually have to show that you or your spouse has lived in your state and county for a certain amount of time. Many jurisdictions use the same residency requirement for divorce for legal separation. However, some states may require less residency time because a legal separation is not permanent. There may also be different requirements if domestic violence is involved.
Separation Agreement & Petition
Some people may wonder how to file for legal separation. All court cases generally begin with a petition in which one or more parties ask the court for some type of relief. A legal separation case will usually begin by one of the parties filing a petition requesting a legal separation and other relief.
In some states, a legal separation is only possible if both parties agree to the terms of the separation. In this situation, the spouses will prepare a separation agreement and submit it at the time of submitting the separation petition or shortly thereafter.
Do You Have To File For A Legal Separation?
If you are wondering about how to get a legal separation, the first thing you must understand is that this requires an affirmative step on your part to submit a petition to the court to recognize this status. If you and your spouse agree to separate but do not file for legal separation, your separation will not be considered a “legal” separation.
Does A Legal Separation Have To Be Filed In Court?
Yes. If you want your separation to be recognized by the government, you will need to file your petition with the court and receive the court’s order that states you and your spouse are legally separated.
If you are wondering where to go to file for separation, you can contact your local court clerk or a family lawyer for assistance. This is typically in the county court where you or your spouse most recently resided.
Do You Need A Lawyer To File For Separation?
Many people are concerned about the cost of hiring a lawyer and may ask questions such as:
- Can I file a legal separation on my own?
- Do I need a lawyer to get a legal separation?
- Where do I go to file for separation?
- How do I file for legal separation?
An experienced divorce lawyer can answer these questions for you.
In some jurisdictions, it is legally required to have a lawyer advise you before getting a legal separation. However, most jurisdictions do not require you to have a lawyer to petition for legal separation.
Even if you learn how to get a legal separation without a lawyer, hiring a lawyer comes with many important benefits. A legal separation agreement may lay the foundation for a later divorce decree, so you will want to have provisions that are fair and favorable to you. A lawyer can explain your legal rights and options. He or she will also be familiar with the type of relief you can request and the process to file for legal separation.
Do You Have to File for Separation Before Divorce?
While some states require you to be separated for a certain amount of time before filing for a no-fault divorce, you generally do not have to file for legal separation before you file for a divorce.
What Goes Into a Legal Separation?
Your legal separation agreement or order will contain several important provisions that can affect your finances and legal rights. The orders contained in this agreement are generally able to be modified. However, some jurisdictions will automatically convert your legal separation agreement into a divorce decree after a certain amount of time, so it is important that you carefully consider provisions about the following:
Your separation agreement may state that one of the spouses may continue to live in the marital home. It may state that the other spouse is responsible for locating and maintaining a separate residence. There may even be instructions on how one spouse should have their name removed from the deed and mortgage of the marital residence.
The separation agreement may also state how the spouses agree to divide their property. It may instruct that the spouses close all joint accounts and distribute the funds equally between them. It may also provide a list of items to go to each spouse. Each spouse may also be ordered to be responsible for certain debts. The spouses may agree not to take out any additional debt in the other spouse’s name.
The separation agreement may also indicate how the spouses will treat certain property for tax purposes, including investment properties. It may indicate which spouse will claim the children for tax deductions and credits.
Since one of the most common reasons why people get a legal separation instead of a divorce is to retain insurance, it is important that you prepare this section of your agreement with care. You may indicate that one spouse must maintain health coverage for the other spouse and the children. Check with your insurance contracts to make sure this is possible since some policies state that if you are legally separated that coverage will lapse.
You may need to speak to your retirement account manager about steps you need to take regarding your retirement plan if you will be transferring a portion of it to your spouse. Typically, you will need a qualified domestic relations order in place to do so. You will want to avoid being taxed or penalized when making a transfer subject to a legal proceeding.
You may be able to include language in your separation agreement that provides for the payment of spousal support while you are legally separated.
Your separation agreement can provide clear guidelines regarding your children while you and your spouse are separated. You and your spouse may prepare a separate parenting plan and include this in your agreement. Your parenting agreement may discuss:
- Which parent the child will primarily live with or if this will be about equal between each parent’s household
- Where the child will go to school
- When each parent has parenting time during the school year and during the summer and holidays
- The parenting responsibilities of each parent
- How decisions regarding your children will be made
- What expenses each parent will be expected to pay related to the children
- Insurance and medical information regarding the children
- What extracurricular activities the child will participate in
- Religious and cultural traditions the child will observe
Your legal separation agreement may also include a statement regarding which spouse will be responsible for paying child support, in what manner, and the amount and frequency of payments. You can consult your state’s child support guidelines to determine the estimated amount of child support based on your income and number of children.
What Happens When You File For Separation?
When you file for separation, you will generally need to have your spouse served with your petition unless you filed a joint petition or your spouse has waived service. Your spouse may have a certain amount of time to provide a written answer to your petition. The date that you use may serve as the date when property is identified as separate property in case of a later divorce case.
In some jurisdictions, your separation agreement will be converted to a divorce decree if you do not withdraw it for a certain amount of time. In others, your separation agreement may become void after a certain amount of time has lapsed and you have not moved toward a divorce. Talk to a family law attorney in your area to learn about the possible implications of a legal separation filing.
Several years ago, my spouse filed a petition for divorce. We went to one hearing where child support and child custody were decided. We never finalized an asset division agreement, and we don’t have a separation agreement or a “judgment of separation.” We have lived apart yet have maintained a tight and loving marriage.