Separation, or Legal Separation, is when a married couple makes an agreement about how to manage their affairs and assets while living apart, but they do not get a formal divorce. Legal Separation, like divorce, must be granted by a court order before it can be officially recognized by the state. Although couples may form a contract for separation outside of a court, separation will not be an official status until a judge agrees to recognize the agreement.

What Are the Benefits of Separation?

Separation appeals to certain married couples for a number of reasons: 

  • They have religious or ethical objections to getting divorced.
  • It allows one spouse to continue to receive insurance coverage through the other spouse's provider.
  • They hope to eventually fix their marriage problems but feel the need to live apart for some time.
  • They do not want to live together during the waiting period required in some states before their divorce is finalized (usually six months).
  • Separation can provide some tax benefits by stabilizing the couple's financial situation before their divorce is finalized.
  • It may allow one spouse to qualify for the social security or other pension benefits of the other spouse before legally divorcing. For example, military spouses may wish to take advantage of the benefits of the Uniformed Services Former Spouse Protection Act (USFSPA) which requires a marriage of at least 10 years.

What Are the Negative Aspects of Separation?

There are some aspects of separation that can make the divorce or annulment option more appropriate: 

  • A contract for separation that divides a married couple's property is often binding when they get divorced. This occurs because courts often use a contract for separation as the basis for a divorce contract.
  • Not all insurance policies continue to provide coverage to a spouse in the event of legal separation
  • Persons who are separated cannot get remarried until they formally divorce
  • If the couple has joint financial accounts or has entered into agreements together (for example, a mortgage), each spouse has access to those accounts and is liable for the payment of couple's debts

Do I Need a Family Law Attorney?

Depending on your financial situation and home situation (for example, if children are involved), separation can be a complicated process. To protect your assets and rights and ensure you are receiving your fair share when separating from your spouse, it is advisable to consult a family law attorney.