Distribution of Property in a Legal Separation

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What is Legal Separation?

Legal separation is when a court of law issues a formal judgment concerning how a couple is to manage their assets upon separation. The judgment allows the couple to live separately while still retaining the legal status of married. 
Legal separation is similar to a divorce in that related issues such as property distribution and child custody will be addressed. However, it is different from a divorce because the spouses will not be entitled to remarry as they will retain their married status. The term “separation” refers to spouses who are living apart but have not formally obtained a legal separation order.
Also, legal separation is sometimes referred to as “separate maintenance”. While this is a common term, “maintenance” in a divorce or separation context refers to spousal support such as alimony payments. Therefore the two terms, legal separation and separate maintenance, should not be confused.

How does legal separation affect marital property?

The distribution of marital property is the same as in a divorce proceeding. Thus, upon obtaining a legal separation, a couple’s marital property will be distributed according to the divorce laws of that state.
Some states follow community property rules, while other states follow equitable distribution rules. In community property states, the marital or shared property will be distributed equally between partners. In equitable distribution states, the marital property will be distributed according to various factors that the court will use in analysis.
Separate property is property that was acquired before marriage or acquired to one individual spouse as a gift or through inheritance. These will be distributed to the owner upon legal separation. Sometimes spouses may take actions that convert or transmute separate property into marital property, or vice versa. 
The court will individually assess such items to determine ownership upon separation. Sometimes courts require written proof to establish the couple’s intent to transmute an item of property. 

What about property obtained after a legal separation?

In effect, legal separation terminates the marital estate and distributes it between the partners. This means that after legal separation, any assets obtained by an individual spouse will be classified as separate property. Any wages or income will also be directed to each individual’s separate estate. 
However, sometimes there may be issues with income and property division immediately after a legal separation. For example, one spouse may have opened a business during or immediately after legal separation, while the funds are still being sorted out. If the person has used marital funds to start the business, then the other spouse may be entitled to reimbursement for their portion of the marital funds.

What can I do to protect my property interests?

In a legal separation, the spouses should take the following actions to protect their assets:
You may wish to list any specific details or instructions in a separation agreement. This may require some compromise or negotiation between the parties. You should not sign any documents without the presence of a lawyer.

Do I need to hire a lawyer for a legal separation?

Legal separations are serious matters and will bring about drastic changes in lifestyles for both spouses. You should contact an attorney before filing in a court of law, as they can help you prepare the necessary documents and information. A family lawyer will also be able to provide consultation in case you need to sign any contracts or agreements. Obtaining competent legal representation is an essential part of protecting your property interests.

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Last Modified: 05-10-2012 02:33 PM PDT

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