What Is a Legal Separation?

A legal separation is a court-ordered arrangement whereby a married couple lives apart, leading separate lives. A legal separation is a popular alternative to a divorce when the parties are unsure of the state of their marriage but want to establish financial boundaries and responsibilities, such as separation of assets, custody of dependents, and child support. However, for those who want a divorce, a legal separation may be required before a judge grants a divorce.

Key Takeaways

  • A legal separation is a court-ordered agreement in which a married couple lives separate lives, usually by living apart.
  • The separation court order may specify financial obligations, child custody and visitation agreements, and child support.
  • A legal separation is preferred over divorce for some people because of religious beliefs, financial reasons, and for the benefit of minor children.
  • Separated spouses may be entitled to certain benefits although legally separated.

How a Legal Separation Works

Although the reasons for seeking a legal separation vary, there are some common ones worth noting. Some religions prohibit married couples from divorcing; a legal separation grants most of the benefits of a divorce without compromising religious tenets. Also, those unsure of their marital future may opt for a legal separation, hoping for a reconciliation. Couples with minor children often cite that a legal separation is more ideal for their children than a divorce. Although the parents function as a separate unit, the family may remain together, maintaining stability and order, for the most part. Another reason for opting for this arrangement is to retain health and retirement benefits.

Many couples choose to separate without a court order as it is simpler and avoids costly legal proceedings. The growing trend towards informal separations and no-fault divorces is making the formal legal separation process increasingly rare.

Once the actual date of separation is determined, it freezes a spouse’s ability to freely spend money from a joint credit card or bank account. It also limits control over other assets like properties and vehicles.

Each spouse becomes legally responsible for his or her debt after the date of separation.

It’s important to treat a legal separation as seriously as a divorce as both are orders of the court, containing duties and obligations that each party must legally uphold. If the couple later divorces, judges may consider the details of the separation agreement when ruling on a divorce

Other Types of Separation

Trial Separation

Unlike a legal separation, a trial separation is an informal decision by a couple to temporarily separate. As the name suggests, couples use this approach when they aren't entirely certain about the separation and want to test whether or not a separation is right for them.

Permanent Separation

Permanent separation is considered by some as the stage preceding a legal separation. Unlike a trial separation, at this point, the couple has decided to separate permanently and there is no hope for reconciliation. However, for whatever reason, perhaps due to health insurance issues, costs, or just laziness, the couple has not made the action to mark the separation in court.

Benefits of Legal Separation

For some, reaching their 10th anniversary is a monumental occasion, but it is also a milestone when future benefits are impacted. If deciding to part ways, a legal separation may keep benefit entitlements intact. For example, military spouses must remain married for a decade to take advantage of the benefits provided by the Uniformed Services Former Spouse Protection Act.

Also, remaining married for at least 10 years means being able to take advantage of certain spousal social security benefits. If at retirement, your spouse will draw more social security than you, it is beneficial to remain married for a minimum of 10 years so you can draw a larger sum by drawing on your spouse's social security retirement.

In spite of the pain from a split, sometimes a legal separation makes sense when a divorce doesn't. For example, a legal separation can be temporary, while a divorce is permanent. Some couples legally separate when trial separations don't work. This may be the last attempt at saving their marriage.

Additionally, a legal separation is often more cost-effective than a divorce, and many parents find that their children are better able to adjust to a divorce if they legally separate first.

Separation vs. Divorce vs. Annulment

Whereas a divorce marks the official end of a valid marriage, an annulment treats the marriage as if it never happened. In other words, a judge grants an annulment when the court never recognized the arrangement as a legally valid marriage.

There are a number of scenarios in which a person can request an annulment such as if the marriage was a result of force, fraud, or physical or mental incapacity; the marriage took place when one or both spouses were under the influence of drugs or alcohol; the marriage took place when one or both spouses were already married, as well as other reasons.

In most cases, however, the legal termination of a marriage will result in a divorce. Unlike a separation, a divorce is permanent. This means both spouses are free to remarry, however—depending on how long the marriage lasted and what state the couple lived in—a divorce also means the termination of economic benefits such as shared insurance, assets, and liabilities.

Ultimately, electing for a divorce over a legal separation or vice versa is a personal choice. Factors such as the cost of the divorce, religious beliefs, the shared benefits that come with remaining married, any timeframe thresholds such as the 10-year mark for military couples, as well as simple uncertainty about permanently ending the marriage may make separation the correct choice.

Example of Legal Separation

Every petition for legal separation must include the following items. The legal names of both spouses, the date and location of the marriage, the names of any children or dependents of the marriage, the proposed custody arrangement of the children, the date and addresses at which the couple began living apart, any child support arrangement, as well as any other financial responsibilities both parties agree to.

In addition to this information, both parties should thoroughly address any issues about responsibilities, shared assets, or any other situation specific to the marriage that needs to be addressed. After all, if the terms of the agreement are not clearly defined in the petition, the judge won't be able to help you.

Legal Separation FAQs

How Do You Get a Legal Separation Without Hiring a Lawyer?

It is entirely possible to obtain a legal separation without hiring a lawyer. Most state and/or county courts have the necessary separation petition forms available for free on their websites. You and your spouse must complete all the necessary forms and submit them to the court clerk.

What States Allow Legal Separation?

All states allow legal separations except Florida, Delaware, Georgia, Mississippi, Pennsylvania, and Texas.

How Much Does a Legal Separation Cost?

If both parties are in agreement, don't contest the separation, and do not hire a lawyer to create the separation petition, the cost of legal separation will only amount to the court filing fee, usually around $50-$300 depending on the state. In New York, for example, the cost of filing a separation petition is $210. The separation becomes much more expensive if there are issues that need to be resolved through the use of a lawyer.

How Long Does It Take to Get a Legal Separation?

The length of the separation process can vary depending on the state and the complexity of the agreement, however, typically the process takes around 6 months to a year.