The Proper Steps to Take When Filing For a Legal Separation

Separation occupies a grey area in many Americans’ minds. Halfway between married and divorced, it is often misunderstood. The difference between couples simply living apart and those who have legally separated can be even murkier. 

Yet legal separation can be a powerful and positive alternative to divorce in the right circumstances. Understanding what it is and what is involved in separating in the eyes of the law can help couples make the best choices for their needs. Keep reading to learn what legal separation is, how it works, and how to get started. 

What Does It Mean to Be Legally Separated?

Couples are free to separate without the involvement of the courts at any time and many do. Such couples may choose to live apart, divide up their belongings between themselves, and have little or nothing to do with each other.

In the eyes of the law, however, these couples are still married. This means that all of the rules that apply to married couples still apply to them.

For example, each spouse has a legal claim on any income or assets the other spouse earns or acquires. Each partner may also be on the hook for debts accumulated by their partner.  

Legal Separation 

When couples legally separate, their status under the law changes. They remain married and cannot remarry. They also tend to retain:

  • Access to spouses’ insurance coverage
  • Their ability to file joint tax returns 
  • Their position and status within any given religion as married  

As in a divorce, however, couples:

  • Usually live apart
  • Divide up marital debts and assets via formal agreements
  • Set up formal custody, child support, and alimony agreements
  • Have no legal claim on income or assets earned or acquired after the date of their separation 
  • Are not responsible for their partners’ debts or legal liabilities 

Separation can appeal to couples who:

  • Are averse to divorce for personal or religious reasons 
  • Need or want to retain the financial benefits of marriage, such as remaining on a partner’s insurance coverage 
  • Want to protect their interests and assets while they determine if it is possible to save their marriage or if they need a divorce

When evaluating divorce vs. legal separation, many couples find that choosing separation gives them the benefits of both marriage and divorce. It can offer welcome stability, to the point that 16 percent of couples who separate remain that way for at least three years, and 15 percent stay separated without divorcing for 10 or more years

Getting Started With Legal Separation

In most cases, the first step to pursuing legal separation is speaking to a family attorney. Family law can vary from state to state.  Working with an attorney ensures that couples have the right information upfront.

Separating spouses will also need the help of a family lawyer in:

  • Dividing marital assets in alignment with legal requirements
  • Structuring child custody arrangements
  • Establishing binding child support and alimony agreements 

Once an attorney has walked partners through the details of what to expect, they can help the couple file a petition for legal separation. Spouses can file for separation together or one spouse may file alone. If they do not file jointly, the non-filing spouse will then be served with notice. 

Cooperative Spouses 

The spouse served notice will have a set amount of time in which to respond to the notice of a separation petition. If they agree to the separation and the proposed separation agreement, then:

  • Both spouses can sign the agreement
  • The agreement must be notarized 
  • The attorney can present the agreement to the court for approval 

If the spouse agrees to separation but disputes the terms of the agreement they can file a counter-petition. The couple can then seek mediation or the assistance of attorneys to refine the agreement to acceptable terms. Then they can sign, notarize, and submit the agreement for court approval. 

Uncooperative Spouses 

If the spouse served notice does not want to separate or the couple is unable to reach an agreement about separation terms, they will need to take their case before a court just as if they were divorcing. Both parties will likely need attorneys. 

Next Steps 

Once a separation agreement is worked out, it must be reviewed and approved by a judge. A copy of the final agreement will go on file with the county clerk’s office. Both spouses should obtain certified copies for their records.  

From there, each spouse can expect to do the practical work that comes with being separated. This may include:

  • Finding new living arrangements
  • Closing out shared bank accounts and setting up separate ones
  • Transferring titles and ownership of assets as dictated by the agreement 

At the same time, many couples will continue to collaborate on certain activities such as filing taxes together.

Depending on their personal goals, couples may use their separation to pursue counseling, therapy, and other attempts to save their marriage. Alternatively, they may use the time to consider, save, and prepare for divorce. Some couples do neither and choose to remain legally married but separated indefinitely. 

Essentially the only thing couples can’t do during their separation is wed new partners.  

Changing Your Mind

Some couples try separation and eventually decide that they need to take things a step further and get a divorce. Perhaps the marriage wasn’t salvageable or maybe one or both partners meet new people and want to remarry. Whatever the case, legal separation agreements can be easily converted to divorce agreements with the help of a family attorney to handle the court filings.

Other couples may find that after a period of separation, therapy, and hard work, they want to return to being properly married. In that case, an attorney can assist them in filing a Motion to Vacate Order of Legal Separation. When the motion is approved by the court, the separation agreement and status will be annulled and full marital status restored. 

This flexibility gives couples the leeway they need to safely take their time in making final decisions about their relationships.

Learn More

Understanding the benefits of being legally separated as opposed to unhappily married or divorced can help you make the best choices for your family. Learn more about family law and keeping your family healthy and happy by browsing the Mama section of our blog today! 

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