A couple that no longer wants to be married, but needs time to work out certain financial issues, may obtain a legal separation in most states. Also referred to as a “judicial separation,” a legal separation must be obtained through a court order, and is usually a prelude to actual divorce, though not always. It is not necessary to obtain a legal separation order for a trial separation, but it may help if issues of child custody and support arise. To explore this concept, consider the following legal separation definition.
Definition of Legal Separation
- An arrangement in which a married couple lives apart, but remains legally married following a court order.
Latin: A Mensa Et Thoro (“divorce from bed and board”)
Advantages and Disadvantages of Legal Separation
The laws concerning legal separations vary in each state that recognizes them, providing a variety of reasons couples may file for a legal separation, rather than divorce. The most common are financial reasons, including:
- Insurance Coverage. If one spouse has difficulty obtaining insurance, and is covered by the other spouse’s health insurance, the couple may separate in order to maintain coverage as a married couple.
- Income Taxes. A couple may separate, but remain married in order to take advantage of certain tax benefits, such as credits and deductions.
- Social Security or Pension. When a couple has been married 10 years or longer, a spouse can receive a portion of the other spouse’s social security or pension benefits. If a couple is close to the 10-year mark, they may decide to separate, but hold off on filing divorce until that period is up.
- Mortgage. If a couple has a joint mortgage, selling might not be in the best interest of either spouse. Separating may allow them to keep the family home without putting an added financial burden on one spouse or the other.
Other Advantages of Legal Separation
- Allows one or both parties to adhere to their religious or ethical beliefs.
- Allows one party to continue receiving benefits from the other’s pension or social security.
- Allows one spouse to continue receiving coverage under the other’s insurance policy.
- Gives the couple time to improve their financial situation before seeking a divorce.
- Gives the couple the opportunity to work on their marriage, or the ability to work out financial issues, such as paying large debts, managing ownership of real property, and child support or alimony.
Disadvantages of Legal Separation
- Marital property often becomes muddled during a period of legal separation, the parties losing track of certain items, or some items being sold or transferred without the other’s consent. In many jurisdictions, a legal separation does not contain the same automatic stay prohibiting the sale of marital property or engaging in debt.
- Some insurance companies end spousal coverage once a legal separation has been ordered.
- The parties cannot legally remarry until a formal divorce is obtained.
- Both parties continue to have access to joint bank and credit accounts, and both remain liable for any debt, unless they have made a written stipulated agreement regarding these issues, or there is an order of the court.
Legal Separation vs. Divorce
When two people obtain a legal separation, the marriage is not terminated. The couple remains married according to the law, but they live apart and lead separate lives. Divorce, once finalized by the court, terminates the marriage in the eyes of the law. A legal separation may serve as a definitive date of separation to be used in the divorce proceedings, though it is not required. The court will accept the parties’ word as to on what date they separated from one another, even if still living in the same household.
Though the legal separation and divorce differ, many of the same issues may be dealt with during the legal proceedings, such as:
- Child custody and Visitation
- Child support
- Alimony or Spousal Support
- Division of Property
- Repayment of Debt
How these are dealt with varies, depending on jurisdiction in which the separation takes place. The parties may come to a written agreement as to all or some of the issues, but if unable to agree, the court will decide the matters.
How to File for Legal Separation
Filing for a legal separation is much the same as filing for divorce. In fact, in most states, the individual filing simply checks the box marked “Legal Separation,” rather than “Divorce,” on the Petition. The filing party must list the grounds for separation, just as they would choose grounds for divorce. The Petition also requires the parties to list information about children of the marriage, as well as marital property. The Petition must be filed with the court, and a copy served on the other party.
Distribution of Property and Debt in a Legal Separation
When a couple legally separates, final settlement of the marital assets is not necessarily made, as the couple has an opportunity to reconcile. If the separation is intended to be long term, and the parties cannot agree about how to divide the marital property and debt, they make petition the court to render a judgment. This requires that each party submit a list of income, assets, and debts to the court, as well as a statement of what property, if any, each considers to be separate property. A hearing will be held, and the judge will render a decision based solely on the financial value of each asset, not taking into consideration which property is primarily used or appreciated by which spouse.
In the event a division of property is requested during a legal separation, the same rules of marital and sole property of divorce apply. All property obtained by the couple during the marriage is community property, with the exception of inheritances, disability income, and specific gifts made to one party.
If a couple later files for divorce, but they have obtained property during the legal separation, state laws determine how it will be distributed. Most often, the date on which the couple actually separates marks the end of the marital property state, and any property obtained after that time is considered separate.
Modifying Legal Separation Orders
Just as court orders made during a divorce can be modified, the same is true of those made during a legal separation. The parties may agree, putting any changes in writing, or they can request that the court modify an order. Modifications can be made to property division, or to child custody. Not all issues can be modified according to the couple’s wishes, however, as the judge has the authority to refuse a requested modification. This is most commonly done regarding custody and visitation, and child support.
Protecting Interests During a Legal Separation
There are steps that individuals can take to protect themselves during a legal separation. Even when couples have reached an agreement, each spouse should take precautions to ensure their assets are protected as the situation may change. These are especially important if the person cannot afford to, or does not wish to hire an attorney to help with the case. Some precautions that should be taken include:
- Opening individual checking, savings, and credit card accounts
- Freezing or closing any joint accounts
- Maintaining possession of any sole personal property
- Having the other spouse’s name removed from utility, cable, and other accounts
- Having the other spouse’s name removed from any real property titles, and mortgages, only after distribution has been made by the court
Ending a Legal Separation
A legal separation does not always lead to a divorce. If the couple wishes to divorce, they must file divorce documents with the court. If the couple wishes to reconcile, they can end their separation and resume their marriage, but they remain legally separated until they file a motion with the court to have the separation terminated. In the event the couple reconciles and then separates again, the same court orders do not usually apply.
Other Types of Separation
Though it is not required to obtain a legal separation, it is the only option in which court orders may be issued. A trial separation is often a couple’s first step in splitting up, or in considering divorce. During a trial separation, the couple lives apart, but does not file any legal documents with the court. A trial separation has no long-term legal effect, no court orders are made. During this time of informal separation, the couple decides issues of division of property, child custody, and the like.
In some jurisdictions, any property acquired by either party during such separation is considered to be marital property. Other jurisdictions consider the date of separation, if the couple later files divorce, to be an end to the marital property state.
Occasionally, couples choose a permanent separation, in which they split up for good, but do not take legal action to end the marriage. In this informal arrangement, the parties decide how to divide the marital property, assets, and debt. The couple remains legally married, however, until they obtain a court order for divorce.
Related Legal Terms and Issues
- Child Custody – The care, control, and maintenance of a child, often awarded by the court.
- Divorce – The legal termination of a marriage.
- Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
- Judgment – A formal decision made by a court in a lawsuit.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Marital Assets – All property, financial assets, and debt acquired by the couple during the course of the marriage, regardless of who holds title to it.
- Personal Property – Any item that is moveable and not fixed to real property.
- Real Property – Land and property attached or fixed directly to the land, including buildings and structures.