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 What Is a Legal Separation?

A legal separation is a court-ordered arrangement in which a married couple decides to live apart, leading essentially separate lives. A legal separation is a widely accepted alternative to a divorce when the parties are uncertain of the state of their marriage but still wish to establish financial boundaries and responsibilities, such as separation of assets, custody of dependents, and child support.

However, for those who seek a divorce, a legal separation may be required before a judge grants a divorce.

If you and your spouse do not want to live together anymore but do not want to or cannot get a divorce, you can get a legal separation. In most cases, you and your spouse, with the assistance of your lawyers, can formulate a separation agreement that lays out the terms of your separation.

The terms can include maintenance, equitable distribution, child support, child custody, arrangements for shared parenting, and other issues. Furthermore, you may file the signed separation agreement with the court and live separately.

If your spouse does not want a separation or you cannot agree on the terms of a separation agreement, then you can request the court to order a legal separation and set the terms. However, this is rarely the case because it can be very time-consuming and expensive and does not result in a divorce. In circumstances that would justify a court-ordered separation there is typically also justification for a divorce, so it is usually better just to start a divorce proceeding.

How Does Legal Separation Function?

Although the reasons for seeking a legal separation depend on each couple, there are some common ones worth noting. For instance, as stated above, some religions prohibit married couples from divorcing. Therefore, a legal separation grants most of the benefits of a divorce without compromising on religious values. Also, those unsure of their marital future may resort to a legal separation, hoping for a reconciliation.

Couples with minor children relay that a legal separation is much more ideal for their children than a divorce. Although the parents function as a separate unit, the family remains together, maintaining stability and order generally for the most part. Another reason for choosing this arrangement is to retain health and retirement benefits. Many couples choose to separate without a court order because it is simpler and avoids costly legal proceedings.

In recent years, a growing trend towards informal separations and no-fault divorces is making the formal legal separation process increasingly rare. Once the actual date of separation is determined, it blocks a spouse’s ability to spend money freely from a joint credit card or bank account. Additionally, it limits control over other assets like properties and vehicles.

Every petition for legal separation must include the following items:

  • The legal names of both spouses;
  • Date and location of the marriage;
  • The names of any children or dependents of the marriage;
  • The proposed custody arrangement of the children;
  • The date and addresses at which the couple began living apart;
  • Any child support arrangement;
  • As well as any other financial responsibilities both parties agree to and;
  • Both parties should thoroughly address any issues about responsibilities, shared assets, or any other situation specific to the marriage that needs to be addressed.

It is highly recommended to define the terms of the agreement as clearly as possible in the petition. Otherwise, the judge will not be able to assist you.

What Happens During a Legal Separation?

In many ways, a legal separation functions like a divorce. Couples who are separating need to divide the assets that they acquired during the marriage. They will also need to make decisions regarding custody arrangements if they have children from the marriage.

Also, there may be child or spousal support matters to decide. A couple may ask the court to decide on these issues in a legal separation if needed. In most cases, the court will use the same kind of analysis in a legal separation to make these determinations that they would in a divorce.

What is the Difference Between Divorce and Legal Separation?

A divorce terminates a marriage, but legal separation does not terminate the marriage. Thus, neither spouse can legally get remarried if there is only a legal separation and no divorce has been filed. Another difference is that if you are divorced and change your mind, you must remarry your spouse to be considered married again. However, with a legal separation, the couple can easily be considered married again by submitting a request to the court.

If a legally separated couple later decides to get divorced, the fact that they are legally separated will make the divorce process much less complex because many of the major matters have already been decided during the separation process. Divorce can be more of a formality in those cases than in cases where couples begin the dissolution process at the divorce stage.

For instance, there are two grounds for establishing living separately in Virginia. It essentially requires two things: physical separation and at least one party with the intent that the separation will be permanent. Physical separation is required by one party moving out of the marital residence. However, Virginia law permits spouses to live separately and apart under the same roof for their six- or twelve-month separation period.

However, there are strict guidelines for this process. One of the parties must have decided that the marriage is over and communicated that fact to their spouse. In many cases, this is accomplished through a text message or an email, but often there is simply a conversation.

Documenting this by stating the intention to dissolve the marriage (as of a certain date) in writing is recommended. Proving the date of separation is a factual determination; the courts will need evidence to corroborate the date of separation.

Furthermore, there is no provision for a “no-fault” separation. The five possible reasons justifying a court-ordered legal separation are slightly different from those for a divorce:

  • Cruel and inhuman treatment by your spouse that endangers your physical or mental well-being to the point where it would be unsafe or improper for you to continue to live with your spouse;
  • Abandonment (including literal, lock-out, or sexual abandonment);
  • Neglect or refusal to provide your support when your spouse is responsible for your support;
  • Adultery within the preceding five years without your permission or participation and;
  • Incarceration of your spouse for three or more consecutive years during the marriage.

The court can make orders regarding maintenance, equitable distribution, child support, and child custody/visitation in a divorce. However, as stated earlier, a legal separation is revocable, which means you and your spouse can reconcile and resume living together.

If you live separately and apart for more than one year after filing your separation agreement or after a court orders your legal separation, then either spouse who has fully complied with the terms of the agreement can request the court for a divorce.

When Do I Need to Contact a Lawyer?

If you are struggling in your marriage and need assistance with issues regarding your situation. It may be useful to consider a legal separation to gauge the status of your marital relationship. For further information on how to proceed, you can contact your local family lawyer to get guidance.

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