What Is Involved in a Legal Separation

Many have questions surrounding legal separation and how it differs from divorce. Legal separation is a decree of separate maintenance that is obtained by a married couple who wishes to live separately but terminate the marriage. It is a court order that outlines the rights and responsibilities of each spouse, and while the couple involved in a legal separation remains married, they live separate lives. Laws governing legal separation vary by state.

Some couples opt for legal separation over divorce if they are unsure about a divorce, or if they want to protect their interests before a decision is made to file for divorce. Other couples choose legal separation for religious reasons or for financial reasons (such as obtaining benefits or reducing debt liability while trying time apart.) Whatever the reason, couples opting for legal separation will need to address many of the same issues that are addressed during divorce.

Child custody, visitation, and support

Child custody, visitation, and support agreements made during the legal separation process are very much the same as they are when made during the divorce process. A couple must make decisions over legal custody—the right and responsibility of a parent to make decisions about a child’s upbringing—as well as physical custody—the right of a parent to have a child live with him or her. A couple can choose for one spouse to have sole custody for legal and/or physical custody, or the couple can opt to have joint custody for legal and/or physical custody. Then the couple must also outline visitation rights and child support obligations as necessary.

Spousal support

Spousal support can also enter the picture during the legal separation process. Most states have laws that outline what a court should take into consideration when granting spousal support during a legal separation, such as the income, earning ability, education, age, and emotional condition of both spouses.

Property and debts

A couple going through the legal separation process will also need to navigate distribution of property, and doing this will often make the process easier down the road if the couple decides to divorce. When dividing property, each spouse typically takes ownership of separate property (property obtained before marriage, or through gift or inheritance) while the remaining property is distributed according to what state laws dictate and what the parties involved agree upon. In addition, the couple will also need to come to an agreement upon how income and debt following separation will be allocated.

Should you opt for legal separation and then choose divorce later down the road, the separation terms you agree on initially might set a precedence for the divorce that follows. Therefore, it is important to navigate the legal separation process carefully and to come to a separation agreement that you will be happy with long-term.