Legal separation, sometimes referred to as a separation agreement, is a formal judgment issued by a court of law that all the issues concerning a marriage have been resolved, including child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct issues. The only issue remaining to be resolved after a legal separation is marital status. A legal separation judgment leaves a couple with the legal status of married persons while settling the respective rights and obligations that each spouse has to the other. Spouses with a separation agreement are not free to marry since neither has been returned to the legal status of an unmarried person.
There are several reasons why a couple might choose to become legally separated. One compelling reason is that legal separation can offer financial benefits, including tax benefits and insurance benefits. When a couple legally separates, spousal support becomes deductible to the party paying the support, which means that if one party is supporting the other or providing significant support, sums payed in that regard are deducted from income despite the fact that the parties are technically still married. If a couple opts to allow the spouse who pays the support to deduct support from income, the couple may not then file jointly. However, since the couple is still married, they may still choose to file a joint tax return despite the fact that they are legally separated if the filing benefits of filing jointly make doing so worthwhile.
In addition, a separation agreement allows a spouse to maintain insurance benefits through the other spouses employer since the status of the parties remains the same, married. A divorce ends health coverage for the spouse of the employed party, requiring the spouse to seek coverage through COBRA or otherwise. Coverage through COBRA requires the spouse to pay the employer's portion of the insurance premium, which may be substantial, or lose coverage. In situations where an employed spouse will be supporting an unemployed or underemployed spouse, the cost of health care or health insurance could amount to a substantial expense in addition to support payments that could be avoided.
Legal separation may also help when a couple is in need of guidelines for dealing with co-parenting, support, and property issues during separation but without beginning the divorce process. During the divorce process, temporary orders and other types of orders regarding property and children are put in place, but couples may want to postpone beginning the divorce. A separation agreement addresses all of the issues that are covered during a divorce, but at the same time allows the parties to maintain their married status until they are ready to pursue the divorce.
Legal separation is also used when a couple wants to stay married for religious reasons or when divorce is not allowed or not recognized by their religion or church.
A separation agreement may also shorten the amount of time that a couple be required to live separate and apart in states where living separate and apart is required prior to a divorce. For example, a state may require that a couple live separate and apart for one year, or alternatively, the couple may live separate and apart for six months if they have a separation agreement and satisfy other eligibility requirements.