Key Takeaways
- When a couple chooses to legally separate, they must set out their rights and responsibilities in a written agreement and usually must file it in court.
- Legal separation does not end a marriage.
- Legal separation can be a temporary solution between spouses who wish to see if they can reconcile, can be the first step toward ending the marriage, or can be permanent.
- While not required, it is best to have your separation agreement drafted by an attorney and for each spouse to be represented by their own counsel.
How a Legal Separation Works
To be legally separated, you must be familiar with the rules that govern legal separation in the appropriate state. The appropriate state can be the one in which you live, where you were married, or where the event(s) leading up to your separation occurred.
Once you and your spouse determine that you wish to be legally separated, and in what state the separation is appropriate, you must both agree on the terms of your separation, have your separation agreement drafted, and execute your separation agreement. Your separation agreement highlights the terms of your separation and each spouse’s rights and responsibilities while living apart. Your agreement should outline how your marital assets and debts are divided, any provisions for spousal maintenance or alimony, and, if you have children, it will set out custody and child support terms as well.
Any two spouses can decide to separate informally, but for separation to be “legal,” this agreement typically must be filed with the court. In many states, legal separation for a certain period of time can be used as the basis for divorce. If you and your spouse decide later to divorce, the terms of your separation agreement can become the terms of your divorce in a proceeding called a “conversion divorce.”
Note
Your separation agreement is binding on the two spouses; it cannot bind third parties (such as creditors, for example).
In addition, a separation agreement is not binding on the court with respect to child custody, support, and visitation matters. The court always will have the ability to intervene on these issues and to enforce what is in the best interest of the child.
Example of a Legal Separation
Let’s say you and your spouse of 15 years have hit a rough patch. You have two minor children, a home, a joint investment account, and you each have a sizable retirement account. You have decided that it is best to take some time apart, and both of you feel as though divorce is looming, but you are not necessarily ready to pull the trigger.
One spouse decides to move out and, together, you determine it’s time to figure out how you will share custody of the children and what will happen to all your assets.
You both agree to share custody of the children, but one parent will remain in the marital residence and have primary custody, while the other will have weekend visitation. The non-custodial parent will pay child support to the custodial parent.
The higher-earning spouse will pay maintenance to the lower-earning spouse. You will divide the investment account evenly. Both spouses will keep their own retirement accounts. The spouse remaining in the residence will be responsible for the mortgage, and all these other financial arrangements you have agreed upon will enable that person to do so comfortably.
Note
The higher-earning spouse will obtain term life insurance in a specified amount, and will name the lower-earning spouse as the beneficiary of the policy.
When coming to this agreement, you each speak with your own attorney, and both attorneys suggest additional provisions you may want to include. Such provisions may provide information about how additional costs for the children will be handled, how other property you didn’t consider may be divided, and who will pay what bills.
You then have your attorneys memorialize this agreement in writing, you both sign it before a notary, and it is filed in the courthouse in the county where you live and were married.
Eventually, after two years, you and your spouse decide that this separation is for the best. You consult with the attorneys who assisted you in the preparation of the separation agreement and ask them to commence a divorce proceeding. They inform you that you can be divorced on the grounds that you have been living separately in line with a separation agreement for a longer period of time than your state’s divorce statute requires.
You and your spouse are still on the same page with respect to the terms of the separation agreement. A judge reviews it, signs off on the divorce, and the terms of your separation agreement become the terms of your divorce.
Advantages and Disadvantages of a Legal Separation
There are many advantages to a legal separation. Below, find information about each of them.
- Revocability: Unlike divorce, a legal separation can be revocable, so if you and your spouse decide to remain married, you can agree to revoke the separation agreement.
- Contractually setting out the rights and responsibilities of each spouse: You want to separate from your spouse, but like in other marital agreements, you want to hash out important issues such as the rights and responsibilities of each spouse, as well as asset distribution, spousal maintenance, and child custody and support.
- Legal protection: Having a separation agreement will give spouses some legal protections. Separation agreements typically are not part of court orders, so there would be no remedy rooted in family or marital law for a violation of one; however, a wronged spouse may have a cause of action in contract law, and could potentially use the violation of the separation agreement as grounds for divorce.
- No court deadlines: It allows you more time to work through the pieces of the separation agreement without the deadlines imposed on you by court dates that are required by divorce proceedings.
- Maintaining some marital benefits: A separation agreement gives the ability for spouses to maintain some financial benefits of being married, such as spousal Social Security, health benefits, military spousal benefits, and possibly filing joint tax returns.
- Simplifies divorce: If you and your spouse eventually decide to divorce, your separation agreement can be incorporated into your divorce. In this scenario, if your agreement still works for both spouses, then a chunk of the work needed to divorce is already done.
Note
If one spouse is collecting spousal maintenance, these amounts are treated as income to that spouse and as such, this couple cannot claim the benefits of filing a joint tax return and must file individually.
Disadvantages of a legal separation include:
- You are still legally married: Legal separation does not end or dissolve a marriage, so you still would be legally and financially connected to your spouse. You also would be unable to marry someone else until your marriage was voided or dissolved.
- You must be in agreement with your spouse: Spouses at odds may not be able to agree on the terms of the separation agreement.
- Possible waiting period prior to divorce: You must wait out the statutorily prescribed period of time in your state if you are planning to use the separation agreement as the grounds for your divorce.
- Limited remedies of enforceability: A separation agreement is enforceable under contract law, but “contempt” is not a remedy for breach of the agreement unless the separation agreement was ordered by a judge in court.
How To Get a Legal Separation
Any married couple seeking to separate can draft a separation agreement and follow the applicable steps in their jurisdiction to legally separate. However, to ensure that it was all done correctly, it’s best that an attorney prepares the agreement and each spouse is represented by their own attorney.
Retaining an attorney to do this work for you will ensure the contents of the agreement are fair and the agreement is filed correctly, and will give your agreement the best shot of being enforceable in court, if challenged. Furthermore, your attorney can properly advise you on how to make sure you are following the agreement and living as a legally separated couple should live in the eyes of the law.
Alternatives to a Legal Separation
If a legal separation does not feel right for you, you may find one of these alternatives to be a better fit:
- Informal separation: If you and your spouse have no financial, custodial, or child support issues to work out, then simply living separately without a separation agreement may make sense, even if temporarily. You may also informally separate and seek judicial intervention for the matters pertaining to the children.
- Annulment: If you have determined that you do not wish to be married anymore and your marriage is voidable in compliance with your state’s annulment laws, you may wish to void your marriage by having it annulled.
- Divorce: If you do not wish to be married anymore and annulment is not an option, you may file for divorce on grounds other than those that require you to live separate and apart for a period of time. Such grounds would typically be contested divorce, or divorce based on irretrievable breakdown or irreconcilable differences. You can also seek divorce after living separately in line with your separation agreement for the amount of time required by state law.
Legal separation could be a good option for you and your spouse if you are planning to live apart and are seeking a way to legally codify both of your rights and responsibilities. Whether you choose to end your marriage, reconcile, or remain separated indefinitely, hashing out these important details together will help everyone carry on more easily in the future.
Frequently Asked Questions (FAQs)
What’s the difference between divorce and separation?
In both divorce and legal separation, you and your spouse set out the rights and responsibilities of each spouse as they begin to live their lives apart from each other. These will include the couple’s assets, debts (and the division thereof), and matters pertaining to the children, such as custody, child support, and visitation. The main difference between the two, however, is that divorce legally ends your marriage while legal separation does not.
How much does a legal separation cost?
The cost of legal separation will vary based on your location, your assets and liabilities, child support, and custody issues, as well as how much you and your spouse agree on the terms of the separation. How time-intensive negotiating your agreement is will directly affect how costly it is to draft and execute.
Do you need a lawyer to establish a legal separation?
While a lawyer is not necessary to become legally separated, it is highly recommended. An attorney will bring the experience needed to write a comprehensive agreement that will touch upon all the most important issues. And just as important, both parties should be individually represented by their own attorney, so that each spouse knows their interests are best represented.