Legal separation occurs when the couple no longer wishes to live together and create an agreement for living arrangements to abide by. If either spouse violates the separation agreement the family court can enforce it. During a legal separation the couples can reconcile and the marriage can continue because in a separation you are still legally married to your spouse. 

Some of the reasons couples may choose to separate rather than get a divorce are because they are still deciding if they should get a divorce, it is more financially beneficial, and some may prefer it due to religious beliefs. 

What is a Separation Agreement?

Generally, once couples decide to separate they can agree to create a written agreement that specifies their roles and responsibilities while living apart. The rights and responsibilities in a separation agreement are usually division of property, child support, child custody and any visitation agreements. These separation agreements define what it means to be a legally separated couple. You and your spouse must voluntarily agree to all the terms of the separation agreement you drafted. 

The court will not force a separation agreement upon you. A court will not draft the separation agreement for you. The couple is responsible for coming up with the agreement on their own terms and voluntarily signing it. Later, you can file it with the county clerk once it is notarized. The separation agreements can become lengthy and time consuming, it is advised to seek out a family attorney to complete the process with you. 

The contents of a separation agreement may include the following terms: 

  • Place of residence, date of marriage and separation; 
  • Identification of the children and where they will be residing;  
  • Who is the responsible party for making payments on the bills; 
  • Deciding how the property will be distributed; for example, the home and the cars;
  • Are there any Pensions and retirement if so, how will your pension and other retirement accounts, like a 401(k), will be divided up; 
  • Determine the amount for spousal Support, there must be a specific amount of spousal support (if any) you or your spouse will pay to the other and the duration of it;
  • Child custody,  you and your spouse will need to decide who will hold custody of your dependent children, or if you will share custody (known as joint custody).
  • Determining what the visitation schedules will look like for the children and; 
  • Child support will include any additional cost such as extracurricular activities (like art classes or sports league fees), additional health insurance. 

It is crucial to carefully consider all the terms of your separation agreement. If the couple decides to divorce,  the terms of the separation agreement can become the terms of your divorce.  Once the separation agreement is written you would need to get it signed and notarized as mentioned above. Once your separation agreement has been filed, the process is complete for legal separation.

What are the Advantages of Getting a Legal Separation? 

There are some advantages to considering  a legal separation and considering if it is the right legal option for you. To ensure if it is the right option for you it is recommended to research local state regulations regarding legal separation. If you determine as a couple that a legal separation provides the most benefits in your situation, it may be the right decision for you. However, it is advisable to seek out an experienced lawyer to evaluate and examine your current situation to assist in that process of decision making. 

Below are some of the most important aspects regarding separation to consider:

  • Legal separation provides the couples space and time needed to figure out if divorce is the right option for them;
  • This time can be used for marriage counseling;
  • You can still utilize your spouse’s health insurance; 
  • Technically the years spent legally separated still count as years married, therefore you will qualify to receive your spouse’s social security retirement benefits (You have to be married for at least 10 years to receive your spouse’s social security benefits); 
  • Legal separation provides flexibility and does not violate people’s religious beliefs and; 
  • A separation agreement can also be used as a basis for divorce.

What are the Disadvantages of Getting a Legal Separation?

As with every legal decision, there will be disadvantages attached to your path in choosing it. Below are some aspects of legal separation that may not work in your favor:

  • Legal separation does not terminate your marriage leaving you with financial, legal and logistical ties to your spouse; 
  • A separation agreement is not legally valid unless both spouses sign it; 
  • It may be difficult for spouses to create a separation agreement because they are in disagreement and are not willing to work with each other; 
  • You are not allowed to marry someone else when you are legally separated.
  • If any type of abuse has occurred in your marriage, legal separation is not a good option and you should seek out help for domestic abuse and; 
  • You have to wait at least a year to use a separation agreement as a basis for divorce. 

Why should I Consider a Legal Separation? 

Legal separation may not be the correct decision for every couple. Therefore, before signing anything it is important to keep in mind the reasons for why you are considering separation and if they are beneficial for you. 

Below are some things to keep in mind as you decide how to continue with your marriage: 

  • The spouses can reside separately but do not need to put the terms of the separation in writing; 
  • The spouses can live separately and file petitions in Family Court for custody, visitation and child support and; 
  • Either couple can file for a divorce. The two types of divorces are the uncontested and contested divorce. An uncontested divorce is for married couples that agree on all the terms of the divorce. A contested divorce is when the married couple does not agree on all the terms. It is best suggested to hire a lawyer for a contested divorce. 

If you are legally separated and now decide that you want a divorce. You can use the same terms as the one in your separation agreement. A conversion divorce is a divorce that is based on an existing separation agreement.  In a conversion divorce, you ask the judge to include all the terms of the separation agreement in your divorce. The judge will review all of the terms of your agreement and decide whether to include all the terms of the agreement in your divorce. 

When Should I Hire a Family Lawyer?

If you are considering a legal separation or are asked to sign a separation agreement, it is recommended to seek out a local state family attorney to advise you on the legal complexities of agreeing these terms and its consequences. 

There can be many reasons for choosing a legal separation but making sure you are able to communicate your interests and translate that into a legal document can become completed especially in these marital situations. Therefore, having a family lawyer present to help tackle these issues is useful to work through the emotional and physical drain from this legal process.