Complexity is a virtually inevitable component of any divorce. Emotions, finances, custody agreements… they all bring their own set of complications and concerns. Legal strategies, too, can be quite complex. One issue that raises questions is separation. Why is filing for separation important. And how do you do it?
What Is Legal Separation?
Many couples decide on an informal trial separation before divorce. This period, in which the spouses live apart, gives the partners time to decide if their marriage is salvageable. They may use the time to take steps towards reconciliation or to cement the decision to proceed with divorce.
A legal separation is different. In this case, there is a binding court order mandating the rights and responsibilities of each spouse. While the couple is still married, the order covers many of the same aspects as a divorce decree does, including:
- Division of property and debts.
- Child custody and visitation.
- Separation maintenance. This is spouse and child support to be paid during the separation. If the couple later decides to divorce, the awards for separation maintenance does influence the court’s decision on support.
It is equally important to understand what a legal separation is not. It is not a divorce; the marriage still exists. This means, for example, that legally separated partners may not remarry.
Legal separation is not as common as an informal separation- so why do some people choose to have this court order?
- Hope for Reconciliation. According to the US Census Bureau, about 14 percent of legally separated people eventually reunite. It is much easier to reconcile when you are separated; you simply need to file a request with the court to resume the marriage.
- Religious Reasons. Some religions prohibit divorce and may even excommunicate members who end their marriages. Legal separations provide protection for spouses in terms of spousal support, custody, and other issues; at the same time, they allow couples to remain married but live apart.
- Precursor to Divorce. Some states require spouses to live apart for a period of one year and one day before they can file for divorce. A separation order establishes proof that they have been living apart. The couple also has the chance to begin deciding on divorce terms ahead of time, making that process, if it occurs, much easier and faster.
- Financial Concerns. A legal separation can be beneficial in terms of taxes. If you choose not to deduct support, you can still file jointly when you are legally separated. Depending on your income, deductions, etc., this can be an advantage that you would not have if divorced. Another issue is insurance: since you are still legally married, you can remain on your spouse’s policy or vice versa. Again, given the cost of insurance, this can benefit both parties.
- Protection. If you live apart without a separation order, you can put yourself at risk. For example, if your spouse accrues debt or faces legal issues after you are separated, you may be liable for them – even if you are no longer living together. A separation agreement can provide protection against these concerns.
Also consider joint debts. If you do not have an order assigning responsibility for these debts and your spouse fails to pay his or her “share,” then creditors can seek payment from you. This is one critical reason that more people, especially women, are seeking legal separations instead of informal ones.
How to File for Separation
If you feel that a legal separation is the right move for your marriage, the next question is: how do you file for one? First, know that a legal separation is a binding court order; it is worth speaking with an attorney to ensure your rights are protected and that you are fully apprised of the process and all of its ramifications. Next:
- Learn about your state’s laws. Some states do not recognize legal separations: these include: Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas. What do you do if you live in one of these states? Ask an attorney about a post-nuptial agreement and other legal remedies. Also make sure that you meet residency requirements.
- File a petition for legal separation. You can use an attorney or file for yourself (forms are available here). While it is your right to file pro se (or for yourself), use caution. It is critical that your petition is in order.
- File your separation agreement. At the same time you file your petition, file your separation agreement. This will cover issues such as assets, debts, spousal support, child support, custody, visitation, and living arrangements.
Remember, a legal separation tackles issues that will come up again, if you divorce. Never agree to anything in a separation that you would not agree to in a divorce. For example, if you agree that your spouse can live at the house but you will pay the mortgage during the separation, a judge may rule that you must continue to do so if you divorce. The lesson: be careful and think through the ramifications. Again, an attorney can be a helpful ally.
- File jointly or be prepared for a counter-petition. You can file with your spouse. If you file alone, your spouse will be served. If the petition is not contested, you can both sign with a notary. Your spouse has the right to file a counter-petition if he or she does not agree with the provisions you have laid out in your filing. He or she has a certain period to file their counter-petition.
If you cannot reach an agreement with your spouse over issues, such as custody, you can work together or with a mediator to work it out. As a last resort, the court will have to step in to settle the matter.
- The separation agreement is filed. After the terms of the separation are agreed up, a judge will review and sign. The agreement will then be filed with the court. When that happens, it is a legally binding document, and you must comply with the terms. Obtain a copy for yourself.
What next? If you and your spouse decide to reconcile, your state may require you to file a request with the court to resume the marriage. Other states have expiration dates on their separation orders, so you can opt not to renew or refile.
If you choose not to reconcile, you can use the separation agreement as a starting point; this will streamline the process. Some states allow you to convert the agreement into a divorce decree.
Consult an attorney before filing for a legal separation; this ensures your rights are protected and that you are fully aware of what the process entails.