What is a Legal Separation?
by Unbundled Legal Help
Sometimes, divorce is not the first step in dissolving a marriage. Many couples find that legal separation is the best short-term or long-term option. Regardless of your situation, it is in your best interest to understand what a legal separation is and who it is best suited for.
A legal separation occurs when one spouse stops living with the other and agrees to certain living arrangements outlined in a legal separation agreement. Legal separation addresses issues similar to divorce such as division of assets, custody, spousal support, etc. Legal separations must be approved by a judge before they are legally enforceable.
In many ways, a legal separation can be just as complex as divorce. Whether you have been ordered by the court to separate (also known as the “waiting period”) before getting a divorce, or you have voluntarily pursued a legal separation, consult with a proven divorce lawyer in your area.
Learn more about legal separations below.
Legal Separation vs. Divorce
Legal separations and divorces are similar in many ways. They both create physical space between a couple, separate finances, divide marital property, address child custody and spousal support issues, etc.
The major difference between a legal separation and a divorce is that a divorce formally dissolves your marriage. On the contrary, when you are legally separated you remain legally married. This means that you cannot remarry, but you may be eligible for certain benefits such as life insurance payouts, social security, pension, etc. upon the death of the other spouse.
More Information about Legal Separations
In many cases, a legal separation is the first step before getting a divorce. It allows couples time to resolve divorce-related disputes while assessing if divorce is their best option. One of the benefits of legal separation is that it is reversible. Also, a legal separation can be easier on children and give them time to adjust to their new reality.
Depending on the state you live in, a period of separation may be required when getting divorced. Some states require couples to live separately for six months to one year before they can file for divorce. Depending on where you live, the legal separation itself can be grounds for divorce.
In this case, you live under your current separation agreement for a specific amount of time and then the agreement can convert into a divorce decree. Legal separation laws vary depending on the state you live in, so it may be best to consult with a family law lawyer in your area to discuss your needs.
Reasons for Legal Separation
Legal separation can prove to be a viable option for couples seeking to live separately and apart but are not ready to be divorced. Divorcing spouses can choose this path for reasons that include indecision, preference to stay married, court-ordered separation, to separate property, and to keep certain benefits. Learn more about the reasons for legal separation below.
Unsure if You Want a Divorce
Legal separation can be a good option for couples that are unsure if they want to get a divorce or not. This way, if they decide to repair their marriage, they have the option to reverse the separation. Thus, they would not have to go through the trouble of remarrying since the separation legally keeps their marriage intact.
Couples that are not yet comfortable with the prospect of a divorce, but recognize the need to legally separate may benefit from choosing a legal separation since it gives them time to make an informed decision about the rest of their lives.
Preference or Religious Reasons
For some, divorce is simply not an option. This can be due to religious views, personal preferences, peer-group pressure, etc. In some cases, couples simply choose to live separately and apart but remain married because it is what works best for them.
Some states require divorcing couples to undergo a period of legal separation (also called “necessary division”) before they can file for divorce. In this case, filing for a legal separation instead of a divorce can be a good option. This can be beneficial because your finances are no longer entangled when the separation is approved.
If you and your spouse get a legal separation, you may still be entitled to some benefits like pension payments and social security benefits that are paid to surviving spouses. A divorce can limit a spouse’s ability to get these benefits.
Additionally, a legal separation allows for an employee to continue covering their spouse with their healthcare benefits. This option is usually not available for divorcing couples.
Like divorce, legal separations allow couples to split their assets, debts, and property. In general property, debts, and income accumulated after legal separation are considered “separate property” during divorce proceedings.
Some couples choose this option when they want to stay married, but also want to protect themselves from their partner’s accumulation of debt or risky business ventures.
If you are currently married, then you are likely familiar with the tax benefits that come along with this designation. Many couples opt to stay married and get legally separated to continue receiving the current tax benefits that they are receiving. Before legally separating for tax purposes, it is best if you check with a proven tax professional.
How Long Does a Legal Separation Last?
Though legal separation is often a step towards divorce, it can also be an endpoint. Couples can choose to remain legally separated for as long as they wish. It is important to note that some states require you to maintain the parameters of your separation agreement for at least a year before it can be used as the grounds for divorce.
Steps To Get a Legal Separation
Before you begin the process of filing for a legal separation, it is important to understand that a separation agreement is a legally binding contract that can be enforced by the courts. Also, the agreement that you sign for your legal separation may set a precedence for your divorce.
For instance, if you agree to make all of the car and mortgage payments during the separation, you may be ordered to continue doing so if you get a divorce. Consult with your local divorce lawyer before signing any agreements as they could have major implications for you. Learn more about the steps to get a legal separation below.
1. Check Your State’s Residency Requirements
Every state sets specific residency requirements for those that wish to file for a divorce or separation. It is best to check your state's residency requirements online or by checking with the clerk’s office. Generally, most states require that you live in the state for at least one year before you can file for divorce or legal separation.
2. File Legal Separation Petition
So long as you meet the residency requirements set forth by your state, you can file a legal separation petition with the family court clerk’s office. If you are unsure how to accomplish this, you can contact an experienced divorce lawyer or contact the clerk's office and file the petition on your own. Filing fees can vary from state to state.
3. File Legal Separation Agreement
When you file your legal separation petition, you will likely be required to file your legal separation agreement as well. This agreement will address issues such as these:
- Child custody
- Child visitation
- Division of marital assets, debts, and property
- Spousal support
- Dating rules
- Living arrangements
Since your legal separation agreement can set precedence for your divorce, you must have a divorce attorney in your area to at least look over your agreement to ensure that your rights are protected and you're getting what you are entitled to.
4. Serve Your Spouse
Unless you and your spouse have filed for a legal separation jointly, you will be required to have your spouse served with copies of the legal separation paperwork that you filed with the clerk's office. If your spouse does not respond in a specific timeframe (usually 30 days) they may be subject to a default judgment or other penalties.
5. Resolve Disputed Issues
In case your spouse does not agree to the provisions in the initial petition, they have the option to file a “counter-petition.” This can result in private negotiations, mediation, or some other form of alternative dispute resolution.
If you and your spouse are unable to agree on your own, the disputes will likely be settled by a family court judge. Legal separations are generally less costly and intensive than a divorce, but in some cases, they can be just as complex.
6. Draft and Sign an Agreement
Once you and your spouse agree about all the issues concerning your separation, you will need to draft and sign the agreement. A divorce lawyer can be helpful when drafting these types of agreements as well as reviewing them before they are signed.
Once your agreement has been reviewed and approved by a family court judge, it is recommended that you keep copies of the agreement for yourself. This will help you maintain the guideline issues in the agreement and also ensure that your ex is holding up their side of the bargain.
Do I Need To Hire a Divorce Lawyer for a Legal Separation?
You have the option to file for a legal separation on your own. However, this is typically not recommended. A divorce lawyer can help to ensure that your rights are protected, you are following the correct procedures, and that you are getting everything you deserve in the agreement. Learn more about the benefits of hiring a lawyer for your legal separation below.
- Protection: An attorney can help you prepare for your separation by explaining how the laws pertain to your case, guide you through the process, and develop negotiation strategies.
- Drafting an Agreement: As previously mentioned, your legal separation agreement can set precedence for your divorce. A divorce attorney will help you take into account all factors before agreeing to certain provisions.
- Negotiations: If you and your spouse cannot agree on a separation agreement, a divorce attorney can be effective at negotiating with your spouse and their legal representative to create a “win-win” scenario for you and your spouse.
Many people cannot afford the cost of a divorce attorney, as a result, they risk their finances, peace of mind, and future by entering into a legal separation agreement without the help of a lawyer. Most divorce lawyers charge $3k-$5k upfront and an additional $300-$500 per hour on top of that.
Fortunately, if you are willing to hire a divorce lawyer in your area to handle the more complex parts of your case while you take care of the rest on your own, you could save thousands of dollars in upfront legal fees. Learn more about unbundled legal services below.
How Can Unbundled Legal Services Save Me Money?
Legal separations can be just as expensive as divorces. The cost of legal representation is what can make the separation process expensive. With unbundled legal services, you can hire an unbundled divorce attorney to take care of some parts of your case, while you handle the rest and save thousands in upfront fees.
Fees for unbundled legal services start as low as $500-$1500.
If your case is more complex, our network of unbundled attorneys offers full representation at affordable rates. Before you spend thousands of dollars in upfront legal fees, get in contact with an unbundled divorce lawyer in your area, and learn if your case is a good fit to be unbundled today.