Legal Separation
Legal separation is a court-ordered arrangement that allows spouses to live apart while remaining legally married. It's distinct from a trial separation, which is an informal agreement to live apart, and a permanent separation, which often signals an intent to divorce. Couples who pursue legal separation establish arrangements for child custody, spousal support, and property division through the court. Even though they live separately under a court order, they are still legally married and cannot remarry.
The Process of Getting a Legal Separation
In states that recognize legal separation, one spouse usually starts the process by filing a petition with the family court. This petition explains the reasons for seeking separation and requests court orders for custody, child and spousal support, and asset and debt division. Financial disclosures are usually required so that the court can evaluate income, expenses, and property. Some couples prefer a collaborative approach and negotiate a separation agreement themselves or through mediation, which they then submit to a judge for approval. Once the judge approves the agreement, or makes decisions on any contested issues, the separation is formalized in a court order. Both parties must then follow the rules outlined in that order.
Legal Separation vs. Divorce
Legal separation does not end a marriage, while divorce officially terminates it. Spouses who are legally separated cannot remarry. Divorced spouses can remarry but lose certain protections and benefits associated with marriage. If a legally separated couple reconciles, they can usually ask the court to cancel the separation order. The specific process for doing this varies by state. A divorced couple who wishes to reconcile and remarry must go through a new marriage ceremony.
If a separated couple later decides to divorce, the existing separation order can simplify some aspects of the divorce because issues like custody, support, and property might already be resolved.
State Law Variations
State laws regarding legal separation differ significantly. Some states don't offer legal separation at all. Others might use the term "separate maintenance" for a similar process. Some states require specific grounds or residency periods before a separation petition can be filed. Rules for dividing assets and debts, awarding spousal support, the duration of separation orders, and the factors considered in custody decisions also vary from state to state. State law also determines whether a spouse can inherit property or is responsible for marital debt during legal separation.
Reasons for Choosing Legal Separation
Religious beliefs often influence a couple's decision to pursue legal separation. Some religions discourage or prohibit divorce but allow spouses to live apart. Couples sometimes may be able to use legal separation to maintain benefits, like health insurance or military benefits, that might be lost in a divorce. Legally separated spouses may remain beneficiaries of pensions and retirement plans (unless the plan specifies otherwise). Another common reason is to experience living apart before deciding whether to pursue a divorce. This trial run allows couples to adjust financially and practically, which can help them decide whether to proceed with a full divorce.
Potential Disadvantages of Legal Separation
Getting a legal separation can be as time-consuming and costly as a divorce, especially if the spouses disagree about support or custody. Neither spouse can remarry while legally separated. Depending on state law, a legally separated spouse might still inherit from the other spouse and remain partially responsible for their debts, which can mean ongoing financial ties despite living apart.
