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What Is a Legal Separation?

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What Is a Legal Separation?

A legal separation is a formal determination issued by a judge granting each partner in a couple certain rights regarding marriage. These usually include issues like spousal and child support, child custody/visitation, property distribution, arrangement of debt payments, and contact between the parties. 

Legal separation may provide a couple with some “space” to work out differences in a way that is often less cost-intensive than a full-blown divorce trial. Also, some couples seek legal separation because they want to retain a married status for religious reasons, or for practical purposes (such as tax issues).

What Is a Legal Separation Compared with a Divorce?

A couple that is legally separated is still technically married. However, in most cases they will be living apart in separate residences and may function as if they were a divorced couple. For example, during separation, the couple may have already begun to distribute property between the two of them, and they may begin alternating custody of children.

Legal separation can sometimes be seen as a step toward an actual divorce, though in many cases the couple can resume living together after a while if they are able to resolve their differences. The laws governing divorce, separation, and distribution of marital property can differ greatly across state and county lines. 

What Is a Legal Separation Agreement? Do I Need One?

A legal separation agreement is a written document that spells out all the major details of the couple’s separation. The document may be formed in connection with a formal trial. Or, the couple may have created one on their own outside of any court proceedings, and may seek to have the agreement approved by a judge. In any case, a court-approved separation agreement is enforceable by law in a similar way that most contracts are enforceable.

The details included in a legal separation agreement will vary according to each individual case of separation. Generally, a basic legal separation agreement will address the following matters:

  • Which parties are involved in the separation (i.e. the contact information of each partner)
  • Matters involving property, like property distribution, and classification of property accumulated during the separation
  • Matters involving children between the spouses, including child custody and visitation, child support, and whether any restraining orders may be needed
  • Issues regarding what further steps the partners should take in the event of future disputes (i.e., mandatory arbitration before a lawsuit, non-litigation clauses, etc.)

In some instances the couple may also include provisions in the agreement that discuss the potential for divorce in the future. However, most couples might not be looking that far ahead, and in many cases the couple still wants to keep their marriage intact.  Again, the issue of what to include in a legal separation agreement depends on the needs and desires of the spouses.

Do I Need a Lawyer for Help with Legal Separation?

Legal separation can sometimes be complicated- at times it can be nearly as extensive as an actual divorce. There will be much paperwork and filing involved, including documents regarding property and taxes. You may wish to hire a lawyer for advice and legal representation when undergoing a legal separation.  An experienced attorney in your area can help identify important matters that might arise such as spousal and child support and other issues. 

Photo of page author Peter Clarke

, LegalMatch Content Manager

Last Modified: 08-20-2014 07:21 PM PDT

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