A legal separation happens when the married spouses decide to live separately, generally meaning living in different homes. Most of the time, this is in consideration or preparation for divorce. Legal separation allows for more flexibility versus a divorce and it does not legally terminate the marriage. Due to religious or personal beliefs, some couples may prefer legal separation over the other. The living apart could either be short-term or long-term depending on the situation.
Usually, in a separation some couples may draft a separation agreement to outline the decision making for finances, child custody, child visitation, spousal support, and marital property. A couple can become legally separated without having the court get involved in the process.
Why Should I Consider a Legal Separation?
If you or your spouse are unsure about getting a divorce, it may be useful to consider legal separation as an option. Allocating some time now and determining if it is the right thing option for terminating your marriage. It can save hefty legal fees and time later on. Some couples may choose to separate because they can still share the same benefits and health care plans.
Additionally, their religious or spiritual beliefs prohibit them from divorcing. The couple may still want to continue filing joint tax returns. Lastly, it can act as a trial or test run before a couple actually decides to either remain married or to dissolve their legal relationship through a divorce. It is important to keep in mind that some courts require a separation period before granting a divorce. Therefore, it is crucial to check your state’s divorce laws to determine whether or not you will need to separate before filing for divorce.
What are the Different Types of Legal Separation?
Generally, there are four types of legal separation that could be considered as an option for the couple. First is the trial separation, which is when you may choose to live apart while you decide if you want to seek a divorce or reconcile. Finances may differ during a trial separation, depending on the state you reside in, your earnings will still be considered joint property unless stated otherwise in your local state law.
If you and your spouse want to reconcile, it is advisable to create a separation agreement about some financial issues that may arise later on. For example, you may need to determine if you still want to keep a joint bank account or credit cards. Other questions may also arise about the ownership of the house, and if the mortgage will be shared.
Furthermore, if you have any children, you will need to decide how and when each of you will spend time with them. If the couple decides they do not want to reconcile, the trial separation turns into a permanent one.
The next type is living apart, which is when the spouses no longer live in the same residence. For states that consider living apart as the first step of a divorce, assets accrued and debts incurred by the individuals during this living apart phase may be classified as separate property and not marital property. But, other states may still consider this property to be joint, marital property until a complaint seeking divorce is filed.
Another type is permanent separation when the couple decides to split for good. In most states, all property received and most debts incurred during a permanent separation are considered to be separate property of the spouse that is responsible for the property or debt. However, if debt involves providing for certain necessities like children, during a permanent separation, the debt will still be considered as joint property. If one spouse takes the other spouse to court for support payments or custody then a separation may be considered legal.
If you live apart from your spouse without intending to reconcile but you are not divorced yet, then your situation is considered permanent separation. For some states, living apart can alter the property rights between spouses especially if you do not intend to get back together. All the assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs. Likewise, you cannot have any share of property or income that your spouse acquires or earns. The date of permanent separation can determine how the property is divided so is it highly contested in a divorce proceeding.
For example, if you left the home and decided to stay with a friend for a month and your spouse intends for a divorce, a bonus check you received at work may be questionable if it is considered marital property. If you move out of the house and do not expect any long-term reconciliation with your spouse, there may be consequences to spending the night together or going out together. If you do briefly reconcile, you can risk changing the date of separation. You may become responsible for your spouse’s financial actions during a period when you thought you were responsible only for yourself. Once you have separated and have made basic agreements about your joint assets and debts, you do not have to divorce immediately. Some people stay married because of insurance and other benefits.
Lastly is the legal separation which is beyond a permanent separation. This happens when a couple splits up and seeks a court issued judgment for a division of property, child custody, support payments, visitation rights, except for divorce. If payments are ordered in a legal separation, either for child support or for living expenses, it is typically called separate maintenance. Some states permit separate maintenance to be ordered even if litigation is still pending.
Generally, the separate maintenance sometimes affects the basis for future alimony awards after divorce proceedings. In some states, you can usually obtain a legal separation by filing a request in the family court. Being legally separated is a different legal status from being divorced or married—you are no longer married, but you are not divorced either, and you are not allowed to remarry. However, the court’s order granting the legal separation can include orders regarding property division, alimony, and child custody and support, just as a divorce decree would.
People choose legal separation instead of divorce because of religious beliefs, their desire to keep the family together legally for the sake of children, the need for one spouse to keep the health insurance benefits that would terminate with a divorce. It provides an alternative to divorce which may feel more comfortable for certain lifestyles. Some people are able to be in a state of legal separation for many years.
Should I Hire A Lawyer?
If you or your spouse is considering a divorce, legal separation may be a feasible option to look into first to understand the issues that may arise if you were to get a divorce. There are certain benefits that come with a legal separation versus a divorce. However, issues with children, division of property and alimony may differ depending on which state you reside in. Therefore it is useful to contact your local family attorney to understand what the differences are and make a plan suitable for your family situation.