- For Attorneys
What is a "legal separation"? How do I get a "legal separation"? Do I have to file a court action to get a "legal separation"? We get a lot of people asking questions about "legal separation" and we understand why. It is because the meaning of "legal separation" is not clear, means something different in different states and there are many misconceptions and mis-statements spread around the web. A legal separation can cost as much as a divorce.
Separation is thought of as where the wife and husband are living apart. However, a wife and husband are generally not required to separate in order to obtain a divorce. In some states, certain grounds for divorce may require that the parties live apart for a specified period of time, but in most states there are grounds for divorce that do not require a period of separation.
The fact that the parties have separated or live apart does not require that they obtain a divorce. In fact, they can reconcile.
Legal Separation in Court:
This is what most lawyers think when they hear the term legal separation. It is a Court action where the parties want to separate and resolve all issues such as property, child custody, child support, visitation, alimony, etc. but don't want a divorce. Reasons some people want to use this procedure is discussed later. The bottom line is that the parties remain Husband and Wife. Not all States recongize a legal separation in court which means that there is no such thing as a court approved legal separation in some states.
"Legal Separation" by agreement:
Some people define legal separation as where the parties live apart and have entered in a separation agreement, thus they consider themselved legally separated. A separation agreement is generally binding on the parties as a contract and thus there is a legal contract governing the rights and obligations of the parties while they are separated. But do the laws of your state define this as a "legal separation"? We will attempt find out below.
Other legal separation:
Are there other things that could be considered a "legal separation". How about living separate and apart?
Regardless of whether you use a separation agreement of court order of separation, either make more certain the rights and responsibilities of the parties during the period of separation.
What is the difference in a legal separation and separate maintenance? Are they considered the same thing? Do all states recognize the right of a spouse to separate maintenance?Unlike divorce which may haved a waiting period, can a person get separate maintenance without a waiting period. In some states an action for separate maintenance may be converted into a divorce, in some states a separate action must be files and in others it is in the discredtion of the court. More later.
Reasons for Legal Separation in Court:
It's easy to understand why people would enter into a separation agreement which can be used in a divorce action but why would people select an official legal separation in court as oppossed to a divorce? Some of the reasons could include the following:
(1) Religious Reasons where the parties do not believe in divorce.
(2) Maybe there are insurance issues where one spouse cannot afford insurance and they agree to remain married so the insurance will not terminate. However, insuracne policies may include provisions that treat legal separation the same as divorce.
.(3) Maybe they want a formal separation but are simply not sure about divorce and need time to resolve the issue
Effect of Separation Agreement:
If you enter into a separation agreement is it binding on the court? Maybe, maybe not. Maybe part is binding and part is not. In regard to child custody, child support and visitation it is generally not binding and must be finally approved by the court when a divorce is entered.
Information about legal separation in selected states is below.
A legal separation does not end a marriage or domestic partnership. You can't marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced but want to live apart and decide on money, property, and parenting issues. Couples sometimes prefer separation for religious reasons.
You do not need to meet California's residency requirement to file for a legal separation. If you file for a legal separation, you may later be able to file an amended petition to ask the court for a divorce-after you meet the residency requirements.
In a legal separation case, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, or any other orders you can get with a divorce case.
There is no legal separation in Florida. A separation agreement can be done but it is not considered a legal separation
The following states do not provide for a legal separation action in court:
Delaware, Florida, Georgia, Maryland, Mississippi, New Jersey (except in civil union cases), Pennsylvania and Texas. This does not mean that a separation agreement cannot be made. It can but there is no court approved legal separation soley due to the execution of an agreement. The Maryland code refers to a separation agreement as a legal separation.