A legal separation is a court-approved separation in which a married couple remains legally married but lives separately. In a legal separation, the court can make orders for spousal support, child custody and support, and property division, similar to a divorce.
However, the couple is still considered married and is not free to marry other people.
Legal separation is only available in some jurisdictions, and the process for obtaining a legal separation can vary depending on the laws of the state where the couple lives.
Some people choose to get a legal separation instead of a divorce for religious or personal reasons or because they don’t live in the same state as the other person, which is a requirement for getting a divorce in that state.
What are the Benefits of Obtaining a Legal Separation
Several benefits of legal separation may make it an attractive option for some couples:
- Health insurance: In some cases, a legal separation allows one spouse to continue to be covered by the other spouse’s health insurance, which can be especially beneficial if one spouse has a pre-existing medical condition or cannot obtain insurance on their own.
- Religious beliefs: For some couples, a legal separation may be a more viable option than divorce due to religious beliefs that do not permit divorce.
- Tax benefits: Depending on the couple’s circumstances, a legal separation may have tax benefits over divorce, as some tax laws may treat married couples differently from divorced couples.
- Emotional: Some people might want to maintain the bond of marriage but without living together. This could be a solution for couples that want to try living apart before committing to a divorce.
- Continued benefits: Legal separation may allow couples to continue receiving certain benefits, such as pension or veteran’s benefits, that they would not be eligible to receive as a divorced person.
- Less adversarial: Legal separation can be less contentious than divorce, as the couple may be able to reach agreements on issues like property division and child custody without going to court.
It’s important to note that each situation is different, and the best choice might be different for everyone. Legal separation can be a good option for couples who aren’t ready for a divorce but want a legal order that addresses the issues of support and property division.
What’s the Difference Between a Divorce and a Legal Separation?
A legal separation and a divorce are both court-approved ways for a married couple to end their marriage and resolve issues related to spousal support, child custody and support, and property division, but they are different in a few key ways:
- Legal status: In a legal separation, the couple remains legally married and cannot remarry, whereas in a divorce, the marriage is dissolved, and the couple is free to remarry.
- Residency requirements: Some states have different residency requirements for legal separation and divorce, so a couple may be eligible to file for a legal separation before they are eligible to file for a divorce.
- Duration: Some legal separations have a time limit, after which, if the couple still wants the separation to be valid, they have to convert it into a divorce. In other places, legal separation can go on indefinitely.
- Grounds: To file for a legal separation, some jurisdictions may not require the couple to prove any grounds for the separation, while in a divorce case, they must prove grounds, like irreconcilable differences or infidelity.
- Health insurance: In some cases, a legal separation allows one spouse to continue to be covered by the other spouse’s health insurance, which can be especially beneficial if one spouse has a pre-existing medical condition or cannot obtain insurance on their own.
- Emotional: A legal separation allows couples to separate their living arrangements while maintaining their legal marriage status. This can be a way of trying to work things out or reaching an agreement before committing to a divorce.
It’s important to know that the process and laws for legal separation and divorce can vary depending on the jurisdiction, and the couple should consider seeking legal advice to understand the requirements and differences in each case.
Why Consider a Legal Separation instead of a Trial Separation?
A legal separation and a trial separation are both ways for a married couple to live apart, but there are some significant differences to consider when deciding which option is best for you and your spouse.
A “trial separation” is an informal agreement where a couple decides to live apart for a certain period of time to determine if they want to continue their marriage or proceed with a divorce. There is no need to go to court for a trial separation, and there will be no orders for child support, child custody, or property division.
On the other hand, a legal separation is a court-approved separation in which a married couple remains legally married but lives separately. A legal separation involves a formal legal process, where the court will make orders for spousal support, child custody and support, and division of property, similar to a divorce.
Here are some reasons why a couple might consider a legal separation instead of just a trial separation:
- Legal protection: A legal separation allows the couple to resolve issues related to spousal support, child custody and support, and property division through the court system, which can provide legal protection for both parties.
- Health insurance: A legal separation allows one spouse to continue to be covered by the other spouse’s health insurance, which can be especially beneficial if one spouse has a pre-existing medical condition or cannot obtain insurance on their own.
- Clarity: During a legal separation, the court can make specific orders regarding the division of property and debts, providing a clearer understanding of each party’s financial responsibilities.
- Emotional: A legal separation allows couples to separate their living arrangements while maintaining their legal marriage status. This can be a way of trying to work things out or reaching an agreement before committing to a divorce.
- Tax benefits: Depending on the couple’s circumstances, a legal separation may have tax benefits over divorce, as some tax laws may treat married couples differently from divorced couples.
Is Property Acquired During a Legal Separation Still Marital Property?
In some jurisdictions, property acquired during a legal separation is still considered marital property and are subject to division in the same way as property acquired during the marriage. This means that if they get a divorce in the future, any assets that either of them got during the legal separation would be split between them in a fair way.
In some places, property bought during a legal separation may be treated as separate property. This means that if the couple later got divorced, the property would not be split.
Additionally, some states have community property laws, in which property and debts acquired during the marriage, legal separation, or cohabitation are considered jointly owned by the couple, so it would be subject to division.
It’s important to note that the laws can vary from one jurisdiction to another, and a lawyer will be able to give more detailed and specific information about the laws in the state or country where the couple resides.
Are Debts Acquired During a Legal Separation Still Considered Marital Debts?
Whether or not debts incurred during a legal separation are still considered marital debt will depend on the laws of the state where the couple lives.
In some jurisdictions, debts acquired during a legal separation are considered marital debt and are subject to division in the same way as those acquired during the marriage.
In other jurisdictions, debts acquired during a legal separation may be treated as separate debt, which means they would not be subject to division in the event of a divorce. The debt would be the sole obligation of the spouse that incurred the debt during the legal separation.
Additionally, some states have community property laws, in which debts acquired during marriage, legal separation, or cohabitation are considered jointly owned by the couple and would be subject to division during a divorce.
Why Choose a Divorce Over a Legal Separation?
Here are some reasons why a couple might choose a divorce instead of a legal separation:
- Legal status: A divorce dissolves the marriage, meaning that the couple is no longer legally married and are free to remarry.
- Emotional Closure: Divorce is the end of a marriage. For some people, the emotional and psychological closure that comes with divorce can be critical to moving on with their lives.
- Financial: Some financial benefits or rights depend on being divorced, like the right to receive certain benefits like social security or pension benefits after a divorce, but not after a legal separation.
- Health Insurance: In some cases, divorce can allow both spouses to be covered by their own health insurance and avoid the cost of covering a spouse.
- No time limit: Unlike legal separation, divorce is final and has no time limit, after which it has to be converted into a divorce.
- Move on: Sometimes, couples want to move on from the marriage and start a new chapter, and divorce is the legal way to do that.
- Children and their welfare: Depending on the situation, divorce might be the best option for the children, for example, if there is a history of domestic violence, drug or alcohol abuse, or other serious issues within the marriage.
In Which States can you Obtain a Legal Separation?
In some states, legal separation is a recognized and established legal process. In other states, legal separation is not provided for by state law.
Some states that offer legal separation include California, Colorado, Connecticut, Delaware, the District of Columbia, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, and Wisconsin.
It’s essential to keep in mind that even if a state does not have specific laws for legal separation, couples can still separate and get a court order for property division, alimony, and custody, but it will not be labeled as a legal separation.
How Do You Get a Legal Separation?
How a couple gets a legal separation depends on the laws of the state in which they live. However, here is a general overview of the process:
- File a petition: One spouse will typically file a petition for legal separation with the court. The petition will typically include information about the couple’s marriage, children, assets, and debts.
- Service of process: The other spouse must be formally notified of the legal separation proceedings by service of process, which is typically done by a sheriff, process server, or by mail.
- Respond to the petition: The other spouse has a chance to respond to the petition and provide their information about the marriage, children, assets, and debts.
- Attend a hearing: Depending on the jurisdiction’s laws, the couple may have to attend a hearing in front of a judge to present their case for or against legal separation.
- Final order: The court will review the evidence and testimony presented by both parties and make a final order for legal separation, which will include details about property division, child custody, child support, and spousal support.
It’s important to note that some states require the couple to live separately for a period of time before they can file for a legal separation, and some require mediation before a hearing.
Do You Need an Attorney To Get a Legal Separation?
Legal separation does not always require a lawyer, but it can be helpful to have one to make sure your rights are protected and you understand the legal process.
A lawyer can help you understand the laws about legal separation in your state. They can also help you through the legal process, such as filling out the right paperwork and representing you in court.
They can also help you negotiate and write an agreement with your spouse about how to divide your property, who will take care of your children and pay child support, and how much your spouse will pay you.
An attorney can also advise you on the tax implications of legal separation and help you understand how your state’s laws apply to your specific case.
They can also advise you on your case’s potential outcome and help you decide if legal separation is the right course for you.
Additionally, if you and your spouse have already agreed on the terms of the legal separation, an attorney can help prepare the necessary documents and file them with the court to make sure that everything is done correctly and promptly.
It’s important to note that, while representation by an attorney is not mandatory, it is highly recommended, especially if the case has a lot of assets and debts involved or if there are children involved and custody arrangements need to be settled.
How Much Does it Cost to Get a Legal Separation?
How much it costs to get a legal separation depends on a number of things, such as the laws of the state where the couple lives, how complicated the case is, and whether or not the couple has a lawyer.
If you decide to hire an attorney to represent you in a legal separation, the cost will depend on the attorney’s hourly rate and the time they spend working on your case. The price can vary widely depending on the attorney and the location, but it can range from a few hundred to several thousand dollars.
In addition to attorney’s fees, there may be court filing fees, which can range from a few hundred to several hundred dollars, and costs associated with the service of process.
If the couple can reach an agreement on the terms of their legal separation and file the necessary documents with the court without legal representation, the cost will likely be less than if they hire an attorney.
However, it’s important to keep in mind that the cost of a legal separation can also be a fraction of a cost of a divorce, as the process is similar but more streamlined and can be resolved faster.
Also, it’s important to know that some legal aid groups can help low-income people with legal services like legal separation.
It’s best to talk to a lawyer to get an idea of how much the process will cost, find out the laws in the area where the couple lives, and decide if the cost is worth the result they want.