A legal separation is typically one of the first steps that a married couple takes when they are experiencing problems in their marriage and are contemplating getting a divorce. A separation can act as a time during which a couple can decide whether or not they can and/or should save their marriage. They may also be deciding whether or not to file for divorce.
Separation can be an extremely difficult time in an individual’s life. A separation is not considered legal until a formal agreement is filed and a court issues an order. It is important for individuals who are considering separation and/or divorce to be familiar with the process and the possible consequences.
Legal separation, also known as marital separation, refers to a binding agreement that a separated couple enters into. This agreement will outline the things the couple agrees to do while living separately. This includes items such as how they will manage affairs and assets, as well as child care, if necessary.
Although the separation agreement certifies the couple is separated and gives it legal status, it is not considered a formal divorce. It is not required that a couple live in separate dwellings during a separation. It is possible for them to live in the same place and still be legally separated.
A key factor in a legal separation is whether or not a binding agreement was formed. If one of the parties violates the separation agreement, it may be enforceable in a family court.
A legal separation usually occurs in one of two ways, including:
- A state’s law and a court require that the couple be separated for a specific amount of time prior to getting a divorce; or
- The couple voluntarily chooses to become legally separated until they can figure out how to resolve their marital issues, even if that eventually includes filing for divorce.
A separation can occur by court order or a couple may choose to make their separation legal. Either method requires a binding agreement and approval from the court.
The majority of states permit a couple to be legally separated. Only 6 states do not offer a form of legal separation.
States that do not allow a legal separation include:
- Pennsylvania; and
A legal separation allows spouses to live separately while remaining married. Parties may use this time to make decisions regarding money, assets, property, and/or parenting issues without the pressure of divorce looming over their heads.
Advantages of a legal separation may include:
- The spouses can still enjoy the benefits marriage, including continuing health insurance benefits and/or military benefits;
- Obtaining certain social security benefits if the couple remains legally married for 10 years;
- Both parties may take the time during the separation to attend counseling and/or attempt to resolve their disputes and differences prior to making a final decision on whether or not to resume the marriage and/or file for a formal divorce;
- In some religions, divorce is not permitted. Therefore, legal separation allows religious couples to live separate lives while still remaining legally married;
- If a couple is uncertain about filing for divorce, they may seek a legal separation to resolve some immediate problem in the relationship; and
- There may also be other incentives to remain married instead of filing for formal divorce, including tax incentives.
There are also disadvantages to a legal separation. When spouses are legally separated, they are still responsible and/or liable for their spouse’s debts even though they are living apart. The best way to address these issues is to enter into a legal separation agreement.
What Documentation and Questions Should I Gather Before Meeting with a Divorce or Separation Lawyer?
It is important to gather any relevant documentation prior to a consultation. It is also important to compile a list of any questions an individual may have for their attorney during the consultation.
Relevant documentation may include information regarding the couple’s assets and debts. It may also include information regarding any children involved and in what activities they are involved.
Common issues that are dealt with in court regarding a legal separation may include:
- Child custody;
- Child visitation;
- Child support;
- Spousal support (sometimes referred to as alimony);
- Distribution of property;
- Attorney fees; and
- Personal conduct.
It is important to bring information regarding the previously mentioned issues to a consultation. The attorney may request additional documentation.
It is also important for an individual to compile a list of questions for their attorney prior to a consultation. Many times, a consultation may go in a different direction than expected, and a list will ensure the individual’s concerns are addressed. Additionally, emotional circumstances can cause an individual to forget issues they may want to discuss.
What Makes a Separation Case Strong?
A strong separation case begins with hiring an experienced family attorney. An attorney will ensure the parties to the separation comply with any local laws and regulations so their agreement will be enforceable.
A strong separation case will address issues the couple will face while living separately. This may include things such as who pays the bills and who has custody of any children. It is important to include as many details as possible so the parties are sure of what their responsibilities are under the agreement.
What are Some Dos and Don’ts for Separation Cases?
Some “do’s” for separation cases include:
- Do: Hire an attorney. A legal separation can be extremely difficult and emotional and it is essential to protect your rights during this time.
- Do: Be prepared to compromise. It is, after all, called an agreement. This is especially true if there are children involved, as it will be a very difficult time for them.
- Do: Be respectful to all parties in court. It may be emotionally difficult for all parties involved in these issues but the end goal is for everyone to be satisfied with the agreement.
Some “don’ts” for separation cases include:
- Don’t: Be difficult just for the sake of inconveniencing the other party. This will only make the process more painful for all involved.
- Don’t: Try to hide assets and/or engage in any similar activities during the separation period in anticipation of a divorce.
- Don’t: Assume just because you enter into a legal separation, a divorce must follow. That is absolutely not the case.
When Do I Absolutely Need a Lawyer for Divorce or Separation Issues?
You need the assistance of a family lawyer for any divorce and/or separation issues. If you are considering a legal separation, you can discuss your situation with an attorney. No two marriages are the same and no two legal separations will be the same.
A couple’s choice between divorce and legal separation is complicated and emotional. An attorney can help you evaluate the drawbacks and benefits of your situation and can assist you in making an informed decision on the best path forward.
Every state has its own specific rules regarding separation and divorce. It is important to discuss these with your attorney and make the best use of the separation period.
An attorney can assist you in drafting a separation agreement that establishes rights and responsibilities concerning each spouse’s debts, assets, and any children that may be involved. Having an attorney on your side will help you be aware of and protect your rights during a difficult and emotional situation.