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What is a separation?

UPDATED: February 20, 2013

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A legal separation is not a divorce, but is often a precurser.  Separation occurs when a married couple no longer lives together, and operates in accordance to a judicially recognized mutual agreement or under the terms of a judicial decree.  It is important to remember that the couple must petition the court to recognize their separation in order for it to be a legal separation. 

Legal Separation Compared with Divorce

A legal separation and divorce have many things in common, however, a legal separation has some advantages to a divorce. For example, a legal separation gives the married couple time apart to decide if they really want to file for divorce. In addition, there are financial benefits that depend on the length of a marriage, such as certain pension and social security benefits that are only available if the marriage lasted for 10 years or more. Also, divorce may put an end to a spouse’s eligibility for medical benefits under the other spouse’s plan whereas a separation would extend those benefits.

Legal Separation Agreements

A separation agreement is a document that sets forth provisions concerning child custody and visitation, child support, spousal maintenance, and property division. In a legal separation, the court may incorporate the terms of the separation agreement into a formal court order that outlines the parties’ rights and responsibilities. If the married couple subsequently decides to file for divorce, the legal separation agreement can form the basis of the divorce in a procedure known as a conversion divorce.

In general, the terms of the separation agreement survive and govern the parties through the divorce decree unless the decree specifically states that they do not. Therefore, it is important to make sure that the legal separation agreement addresses all of the rights and responsibilities between the parties.  Spousal support, child custody, and child support provisions of a separation agreement are never binding on a court if the couple decides to finalize a divorce, although they may be considered. 

What To Do Before a Legal Separation

There are important issues that must be decided before a married couple separates. As part of any separation agreement, joint credit cards and other financial obligations must be split, and joint bank accounts should be closed with the funds divided accordingly.  In addition, each party should have a copy of all important legal and financial records, such as income tax returns. Finally, it is advisable for the party who is moving out to take their personal property with them, or make sure the separation agreement specifically lists the property, so that there is no confusion or disagreement if the parties subsequently file for divorce.  If the parties are unable to agree on the financial details of a legal separation, the accounts may be frozen until a judge decides how to divide assets and property.

How To Get a Legal Separation

Although state laws may vary, to obtain a legal separation, the married couple must meet the state’s residency requirements just as they need to do if they are filing for divorce.  Assuming the residency requirements are met, the next step is to file a legal separation petition with the appropriate court along with the legal separation agreement that addresses all of the rights and responsibilities of the parties.  If one of the spouses is not in agreement with the terms of the legal separation agreement, the spouse who is in disagreement must be served with the legal separation papers, and a judge will determine the terms of the separation.

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