Legal Separation

For couples who want to physically separate without going through a divorce just yet, legal separation may be an option. The process for obtaining a legal separation is similar to the divorce process, as one party must file a petition with a court to begin proceedings and the parties must agree to issues like alimony and child support; the main difference, of course, is that no final divorce decree is granted in legal separation proceedings.

Note that some states do not offer the option of legal separation, however. The following states do not recognize legal separation:

  • Delaware
  • Florida
  • Georgia
  • Mississippi
  • Pennsylvania
  • Texas

Reasons to Pursue Legal Separation

The reasons a couple might choose to pursue legal separation instead of a divorce are varied, but most commonly, the reasons include the following:

  • Jurisdictional requirement that couples declare a legal intention to separate before filing for divorce;
  • State law that allows a divorce based on “irreconcilable differences” only after a one-year separation;
  • Couple has not yet met state’s requirements for divorce;
  • Religious convictions;
  • Financial reasons;
  • Insurance provisions.

It is important to note, however, that in some cases pursuing a legal separation instead of a divorce can actually be more costly, so the desire to save money is probably not a good reason to seek a legal separation.

Rules of Legal Separation

Although specific rules vary by state, generally a legally separated couple is prohibited from living together and usually from having sexual relations with each other (and sometimes also with other people). Also, in many jurisdictions, following the specified period of legal separation, the couple must file for divorce if they don’t reconcile.

The Separation Agreement

Just as with divorce, couples in a legal separation must come to an agreement about all of the major issues involved in a breakup of a marriage: property division, custody, child support, alimony, etc. All of these issues are addressed in a separate agreement, which if approved by the court, is also enforceable by the court.

If you and your spouse agree to terms privately without court involvement, you will have no legal recourse if your spouse does not follow the agreement. Accordingly, it is highly recommended that you seek legal advice is drawing up the separation agreement and then have the attorney present the agreement to a judge for approval.