Legal separation is an option a married couple may choose as a possible step towards divorce under the laws of many states. A legal separation involves a court order arranging the terms of custody, child support, spousal maintenance (alimony), and property division under which a married couple will live separately. The definition of legal separation varies depending on ones state of residence and generally involves spouses no longer cohabitating.
Why Choose Legal Separation?
Legal separation is not a prerequisite to divorce. A legal separation allows a married couple, particularly the spouse who wishes to leave, to experience what life would be like living apart from their spouse without making a final decision to divorce. The main advantage of a legal separation is that it can easily be reversed in that you can try it for awhile then reconcile or, in the alternative, proceed with divorce.
Reasons for Legal Separation.
In some states, legal separations can be as expensive as divorces. Some states require a couple to remain separated for a period of time before divorce. Most states do not require a waiting or "cooling off" period before obtaining a legal separation as opposed to requiring such a delay when seeking a divorce. Because a legal separation has no waiting period, you and your spouse can get a court order regulating each party's mutual rights and liabilities much more quickly than in a divorce. Specific reasons for you or your spouse to undertake a legal separation instead of a divorce are:
- It may be a requirement of your state that a couple seeking a divorce be separated for some period of time, which results in providing grounds for the eventual divorce. The required period of separation before filing for divorce varies.
- One spouse may have a religious objection to divorce. Legal separation allows you and your spouse to remain married even as you live apart.
- Some couples may need to be separated but remain legally married so that a non-employee spouse can continue to be insured for medical or other purposes by the other spouses employer. Such a situation exists when one spouse has a pre-existing condition or some other reason exists that prevents that spouse from getting their own medical/health insurance. Most medical/health insurance plans allow the employee spouse to keep a separated spouse on their medical/health insurance.
- Some couples may need to remain legally married until the 10-year deadline is reached to obtain certain Social Security benefits.
- Some couples may need to remain legally married until specific deadlines are met to permit enforcement of military pension benefit rights or other retirement/pension benefit rights.
- When one spouse pays alimony to the other, a written separation agreement permits the person paying alimony to deduct the alimony on his or her tax return, despite not being divorced. Couples who choose to stay in the same house and live in separate bedrooms are generally not legally separated and the paying spouse cannot deduct support payments made to the other.
- In situations when it is clear that the couple is moving toward divorce but it will take some time to work everything out.
Cautionary Steps.
It is important to remember that when legally separated, you are still married and are not free to remarry. Depending on where you live, adultery taking place after the written separation agreement is entered with a court but before a formal divorce had been obtained can cause negative financial consequences for the cheating spouse.
If one spouse has already moved out, the remaining spouse should seriously consider filing for a legal separation to protect themselves concerning child custody and support, taxes, and any new debts that might be incurred.
If you or your spouse are unsure that you want a divorce but feel that some legal space is required to gain time to think things through, filing for legal separation is a good option since it does not rule out and would make reconciliation much easier. If reconciliation is not the chosen path, then the written separation agreement will serve as a basis for a divorce judgment. Courts, or you and your spouse by agreement, can modify the provisions of the separation agreement when the divorce is finalized.
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