Marital Separation Laws

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 What is Legal Separation?

Legal separation can be referred to differently depending on which state you reside in. It can be called “limited divorce,” “judicial separation,” or a “separation from bed and board.” In some states, spouses must actually become legally separated as a requirement before they can obtain a divorce.

The time required for a legal separation is generally between 6 months to 2 years, but this varies, depending on each state’s laws. In jurisdictions without the right to a legal separation, the spouses could live apart and enter into a written separation agreement (signed by both spouses), which would have the same effect.

Legal separation permits a husband and wife to live separately and formalize their arrangement through a court order or written agreement. The order will specify what support, if any, one spouse will pay to the other. If the husband and wife have minor children, the court order will set forth arrangements to be followed regarding custody or visitation. Typically, a separation does not legally dissolve a marriage.

What Rights do Spouses Have During Separation?

In a legal separation proceeding, a court can decide matters such as child custody and support, alimony, and property division. However, as mentioned earlier, the spouses will remain legally married and cannot remarry unless and until they obtain a divorce.

Some of the most common issues that arise between separating couples include:

  • Whether one spouse is entitled to temporary alimony;
  • How much child support payments should be if there are minor children;
  • Rights to the family home, including whether either spouse may have the right to remain in the marital home
  • during the separation and who will pay for the mortgage, and;
  • Which debts each spouse is required to pay.

Do You Need a Legal Separation?

Some couples choose legal separation because their religious beliefs forbid divorce. Other couples consider a legal separation a time to gauge each other’s relationship in a troubled marriage. Whatever the reason, a separation has the advantage of giving a legal framework for both parties in the event one does not follow through with the terms of an agreement or obligations to pay support.

For instance, if one spouse fails to pay child support and alimony, the separation judgment and order will give the recipient spouse some remedy to have the orders enforced in court. This usually implies that a judge can force the delinquent spouse to pay. If there is no legal separation or separation agreement followed by a court order, there is no other way to enforce the overdue payments.

With a legal separation or separation order, the spouse that falls behind on the payment can be held in contempt for violating the order. Contempt may result in fines, penalties, and even some jail time. A legal separation may also bring some stability to a rocky relationship while the spouses try to figure out whether they will remain married in the relationship or pursue a divorce.

Why Obtain a Legal Separation Instead of a Divorce?

Choosing between a legal separation and a divorce is usually a matter of personal preference. Some people have religious or personal beliefs that prohibit divorce. Therefore, a legal separation allows them to remain married while being able to live completely separate lives.

A legal separation will continue your relationship to some extent, so you remain connected. If you obtain a legal separation, you are still entitled to certain benefits, like social security benefits and pensions, that provide payments to surviving spouses.

A legal separation can be the stopping point on the way to divorce. It allows the couple to resolve all the important issues (custody and financial issues) in their lives while keeping the marriage intact and determining what they desire.

It is important to note that legal separation is reversible. However, if you get divorced, it is permanent. Moreover, a legal separation may be easier for your children because you remain married, and it does not have as devastating an impact as a divorce.

How Do I Obtain A Separation?

There are several types of legal separations. A trial separation is an informal separation during which you live separately and see if a separation or divorce is what you desire. Many couples follow this process when they are facing marital problems. Anyone can separate at any time for any duration of time, and no court involvement is needed. You are separated if you and your spouse reside in two different places. A legal separation happens when the court formally declares you are separated.

However, not all states offer legal separation as an option, and it is important to determine your own state’s laws. If legal separation is available in your state, you can obtain a legal separation by submitting a separation agreement. Furthermore, you can also obtain one by filing for a separation, just as you would file for a divorce.

Additionally, you can have a trial if you do not agree. Divorce and legal separation are valid and useful options when dealing with a failing marriage.

Does a Couple Have to be Separated Before Obtaining a Divorce?

In most states, a couple can proceed to a divorce without first trying to obtain a legal separation. While waiting for the divorce, the couple might live apart (without a formal agreement), or, in some states, they could even live together pending the final divorce. But, a few states require a separation period before a divorce can be granted. A separation agreement may expedite your divorce process in some states. However, consult with your attorney to determine what makes the most sense for your situation.

Remember that courts are not necessarily bound by what you state in your agreement. The terms you include for child support, custody, and visitation can be modified by the court in the best interest of the children. While separated, you are still considered married and any sexual relations with someone who is not your spouse is adultery if it happens before you are divorced. Any “dating clause” in your separation agreement will not modify this.

Who Drafts a Separation Agreement?

It is recommended to have an attorney draft your separation agreement. Discuss this with your attorney to see if they can guide you or refer you to someone who can. It may be a good idea to have two attorneys involved, one to advise each spouse. In this way, the husband and wife both know they have received independent legal advice for their situation. Try to obtain a lawyer who does not have a conflict of interest in trying to represent two clients with different goals and needs.

If you have a court order, you can ask a court to hold your spouse in contempt of court for violations. But, separation agreements typically are not part of court orders. You may be able to sue your spouse for breach of contract for not adhering to the obligations specified under the separation agreement.

When Do I Need to Contact a Lawyer?

If you are deciding between divorce and legal separation. It is crucial to understand your legal options. Consulting with a local family lawyer can help you decide your path forward for your marital relationship.


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