When a couple is considering divorce, they often decide to separate for a time before actually ending the marriage in order to determine if they're doing the right thing. They have the option of doing this informally, by working out an arrangement casually between them, or they can choose to undertake a legal separation. A legal separation is the creation of a court-approved document that outlines the terms of the separation. In order for the document to be enforced, both spouses must agree to the terms. Typically, couples will choose the former rather than the latter option unless they have a specific reason as to why they want a court-recognized separation.
In some states, a legal separation may be required before a divorce will be granted. In other states, legal separation is not required, but it may help the divorcing parties to move through the divorce process faster. In such states, if you are seeking a divorce and you have a formal legal separation, you may be able to obtain a no-fault divorce after a period of six months instead of having to live apart for a year before the divorce is granted.
If the divorce is acrimonious, the legal separation can prevent any parties opposed to the divorce from making objections that could extend the waiting period. Common arguments by spouses to extend a waiting period include occasional marital relations and temporarily staying at the same residence. Having the court approve the separation literally places a date stamp and will begin the toll for waiting period requirements.
A legal separation may be a voluntary living arrangement on the part of the parties. The legal terms of the separation are applied simply to make sure that each party has support and protection before a final divorce settlement agreement goes through. This type of legal separation agreement can outline whatever terms the couple feels are important, but it typically focuses on details such as who lives where and who agrees to take possession of what property during the separation.
This type of legal separation agreement can also include information about alimony payments, child custody arrangements, and marriage counseling. The document should be signed by both spouses and it may be wise to go over it briefly with a divorce attorney. Should the couple choose to get back together, they can void the separation agreement at that time. Should they go on to divorce, the divorce documentation will take over where the separation contract left off.
Some couples seek a long-term legal separation instead of a divorce to protect certain assets that are held as a couple. For instance, military spouses must remain married for 10 years in order for medical and retirement benefits to vest in a spouse. By legally separating, the couple is able to live independent lives and wait for the time to toll when the benefits will be vested. Social Security also requires that a couple is married for 10 years before each spouse has a claim in the other’s benefits.
If a couple has medical insurance through a private employer, the benefits for the unemployed spouse will end once the divorce decree is final. If the other person would be otherwise uninsured, then it is in the best interest of the couple to seek a separation until a point when both people have independent insurance. Similarly, certain forms of inheritance may only vest in one spouse should a divorce happen. In this situation, if the couple is legally separated, both individuals are able to still enjoy the benefits of the inheritance.
Taxes are always an issue when making any legal decision and divorce is no exception. If one spouse is paying the other spousal support, there must be a legal separation agreement in order for the paying spouse to obtain the tax deduction for the money paid. On the other hand, if the couple is benefiting more from filing jointly than they would individually, a legal separation would be more beneficial than an actual divorce.
If you are considering a legal separation, as with any legal decision, consult with an attorney. During your consultation, inquire about your state’s divorce requirements and particularly ask about waiting periods. You should also have a divorce lawyer review the legal separation agreement before you sign to make certain that it is mutually beneficial. An attorney’s review of the document is especially important considering that most judges will transfer the agreement over as the terms for the divorce, if a divorce is sought.