In general, separation is often one of the first steps that a married couple takes when they are experiencing too many problems with their marriage and are contemplating getting a divorce.

Separation acts as a sort of temporary holding period in which the couple is deciding whether they can and should save their marriage. They may also be deciding whether it is better for them to permanently part ways and file for a divorce. 

At this stage, a couple is not considered to be legally separated until an agreement is formed and a court issues an order stating as much. 

What Does Legal Separation Mean?

The term, “legal separation,” also known as “marital separation,” specifically refers to the binding agreement a separated couple enters into. The agreement sets out the particular guidelines they agreed on that the couple must follow while living apart. This includes items, such as how they will manage their affairs and assets. 

Although this agreement certifies the separation and gives it a legal status, it is not yet considered a formal divorce. 

Additionally, legal separation does not necessarily mean that the couple has to live in a different dwelling than their spouse. In fact, it is possible to live under the same roof and still be deemed legally separated. 

The key aspect to legal separation depends on whether a binding agreement was formed. If one of the parties violates the agreement, a family court may be able to enforce it. 

What Types of Things are Included in a Legal Separation Agreement?

Separation agreements can contain provisions for anything that a couple wants to define before legally separating. This typically includes:

    • Living Arrangements;
    • Spousal or Child Support;
    • Custody and Visitation Schedules; 
    • Divisions of Assets; and
    • Various other financial responsibilities, e.g., who is paying for what bills.  

When Does Legal Separation Occur?

Legal separation typically occurs in one of two ways, either:

  • States laws and a court require that the couple be separated for a specific amount of time before getting a divorce; or
  • The couple voluntarily elects to become legally separated until they can figure out how to resolve their marital issues (even if that eventually means filing for divorce).

Whether the court orders it or a couple chooses to officialize their separation, both methods require a binding agreement and court approval.

What States Allow for Legal Separation?

Most states allow couples to become legally separated. There are only six states that do not offer some form of legal separation. 

The states that do not allow for legal separation include the following: 

  • Delaware;
  • Florida;
  • Georgia;
  • Mississippi;
  • Pennsylvania; and 
  • Texas.

What Are Some of the Different Laws That States Have Regarding Legal Separation?

Although most states recognize some type of legal separation, some states may use a different name to refer to the process. Not all states follow the same procedures for it. 

For example, Maryland has something called, “limited divorce,” which operates similarly to legal separation. New Jersey, on the other hand, has legal separation, but it is only available for partners involved in a civil union.

As illustrated by the above examples, circumstances for legal separation depend on the laws of each state. Some state laws even require that couples be legally separated before filing for divorce. Other scenarios that frequently differ across states include:

  • Permitting the court order from the initial legal separation to serve as a divorce proceeding;
  • Requiring that the couple start the process of divorce, even if already separated; and
  • Giving courts the authority to decide whether to change a separation agreement into a proceeding for divorce. 

What Happens If I Get Legally Separated and Live in a Community Property State?

The laws of a state impact the manner in which property is divided during a divorce. Most states follow a set of laws called equitable distribution. A minority of states, however, distribute marital property using guidelines known as community property laws.

In community property states, any property that a couple acquires during the marriage is said to be owned equally by each spouse. 

This means that even if a couple is separated, any property that can be considered community property will continue to partially belong to each spouse until a divorce is finalized. 

Do I Need a Lawyer to Get a Legal Separation?

If you are thinking about whether to enter into a separation agreement, you should contact a family law attorney. An experienced family law attorney will be able to discuss the different laws that apply to legal separations in your state and how they may affect you. 

Additionally, speaking with an attorney can help you to assess the best options, as well as plan ahead in the event that the separation becomes a divorce proceeding. They can also answer any questions or concerns that you may have in regard to getting a legal separation

Finally, it is important that both you and your spouse retain separate attorneys to draft and review your separation agreement. This will help to ensure that all of the provisions are equally divided and fair.