When a couple faces a breakdown in their relationship, they may not want to jump right to divorce but may wish to separate. Some couples just need the time and space to gain some clarity on their relationship, and some would like the time to figure out the terms of their divorce.
There are various forms of separation available:
- Trial separation — spouses take a predetermined amount of time apart from each other. It’s an informal agreement and has no impact on marital status or property rights.
- Permanent separation — spouses live apart with no plans for reconciliation but have not yet filed for filed legal separation papers or divorce.
- Legal separation – spouses get a court-ordered arrangement where they live separately and apart, with legally separated assets and debts.
Some couples decide that a legal separation is an option they want to explore. There can be many reasons why couples would want to take this route:
- They would like to remain married for religious reasons
- They have children together and want to avoid the trauma of a divorce
- They would like to keep the health insurance or tax benefits of a married couple
- They want to avoid the stigma of being divorced
How To Start the Separation Process
You should follow specific steps to file for a legal separation, some of which depend on your state.
Step 1 – Check Your State’s Requirements for Separation
Your first step is to research the legal requirements in your residential state, as different states have different laws. For example, how long you have lived in your state may affect whether you can file there. Also, some states require that you provide grounds for why you want to separate, which can be any of the following:
- Consanguinity (finding out you and your spouse are related after marriage)
- Unsound Mind
- Domestic violence
- Physical incapacity
- Sexually transmitted disease
- Unreasonable behavior
Some states may not accept some of the reasons mentioned above, so check your state laws to see which grounds apply to your circumstances.
Taking California as an example, you could visit the California Judicial Branch website and find their laws and processes for ending a marriage or registered domestic partnership. You would then see California is a “no-fault” state for divorces, legal separation, and annulments. In other words, you wouldn’t have to prove grounds for ending the marriage, and there doesn’t need to be a period of living separately and apart before filing for divorce.
Step 2 – File a Petition for Legal Separation Form
After filling in the necessary forms, you must petition the court by filing the petition with the county clerk. The petition should include financial disclosures and information on child custody, spousal support, and living arrangements.
Once you have filled in the form, you can hire an attorney to file the petition for you or do it yourself by going to the court clerk in your county. The cost to file a legal separation agreement varies by state. The average range for filing the petition is between $100 and $700.
For example, in Washington State, a legal separation costs around $300, while Nebraska requires around $150.
Step 3 – Draft a Separation Agreement
You have the choice of getting a lawyer to help you draft the separation agreement, or you can write it yourself using a free separation agreement template. You need to make sure to include the necessary information for the document to be valid.
Your separation agreement should also cover the division of finances and assets such as:
- Real estate (primary and vacation homes)
- Marital property (family cars, collections, antiques, etc.)
- Investments (stock options, exchange-traded funds, mutual funds, etc.)
- Mortgages, loans, bills, debts, and taxes
Remember that each situation is different. You or your spouse/partner may decide not to pay alimony or spousal support because you’re still legally married. For some situations, you may prefer to keep joint accounts, such as a joint checking account for shared bills.
And lastly, your agreement should also be clear on shared responsibilities if you have children:
- Child custody and living arrangements
- Visitation schedules
- Child-care plans (such as health insurance and school obligations)
- Child support
Step 4 – Serve Your Spouse the Legal Separation Papers
If you and your spouse are filing jointly in a no-fault divorce state, you can fill out the information and present it to the court. This counts as “service of process,” with no need to provide your spouse a notice of the separation.
However, if you file separately, you will need to serve your spouse with the separation papers once you have filed your own.
You should avoid personally delivering the separation papers. Many courts require you to use licensed, professional process servers. Other jurisdictions allow service by certified mail or other means that require a signature confirmation.
Consider your options for ensuring that your spouse understands your request for a legal separation.
Step 5 – Come to an Agreement on Issues
You and your spouse’s willingness to agree on issues will help make your legal separation easy and amicable. Agreeing on issues will likely lead to the court approving your petition to be legally separated.
When your spouse is willing to discuss terms amicably, there can be more benefits:
- Lower costs than going to court
- Flexibility to negotiate issues and come to solutions
- Reducing court involvement, which can be time-consuming
However, there may be instances when you and your spouse disagree on issues. For example, if you file a petition for legal separation, your spouse could file a counter-petition. Both of you would be asking for separation but with different terms involving children, the division of property, finances, and other aspects of your lives.
This situation can lead to mediation or a judge deciding for you as a last resort, bounding you to that decision.
Step 6 – Notarize the Separation Agreement
Some states require your legal separation agreement to be notarized before it can be legally binding. For example, the state of North Carolina makes it clear that the agreement must be in writing and acknowledged by both parties before a certifying officer. Any notary public can perform this action, and although both parties need to sign in front of a notary, you don’t need to be present together. You can sign in front of separate notaries.
In addition, you should also get the proposed legal separation order notarized.
Step 7 – Submit the Separation Agreement to the Court
When the agreement is complete and notarized, you are ready to submit it to the court. The court will likely approve your separation unless the document has questionable terms. Once approved, you and your spouse are required by law to follow its terms. Finally, keep a copy of the separation agreement for future reference.
Legal Separation Frequently Asked Questions
Can you date after legal separation?
Yes, you can date after legal separation, as there is generally no law against it. However, some states have strict requirements for legal separation. For example, some states require a couple to live separate and apart in different residences before the court accepts their separation. Otherwise, dating while separated may be considered adultery and this may negatively impact outcomes if you ever pursue a divorce.
Other states may not have such restrictions on a spouse living under the same roof. But maintaining the rule of no physical or emotional intimacy between you and your spouse is crucial. You should further research what your state says on dating after legal separation or speak with a licensed family law attorney.
Can you be separated and live in the same house?
Yes, you can be separated and live in the same house. But only some states will allow this. When you’re living together, it can be harder to prove you’re separated, and they will consider several factors when making their assessment. They will consider whether you two:
- File joint taxes and have joint finances
- Sleep in the same bed
- Have sexual intercourse
- Go on holidays together
- Attend social events together
- Socialize with each other’s family
- Celebrate occasions (e.g., birthdays) together
- Cook and eat together
- Share household chores
- Provide each other support like a married couple
- Present yourselves as a couple to others
- Go relationship counseling
- Have future plans with each other
If you want to live with your spouse when legally separating, check your state laws to see if such an arrangement is allowed.
If we’re living together, what are my house rights?
When it comes to legal separation and house rights, it’s essential to discuss how you would like to navigate that issue with your spouse. After establishing separate areas of the house, you two will have to agree on who will have access to these areas, and who will pay for the mortgage during your separation.
Do you have to be separated to file for divorce?
No, separation isn’t required before a divorce. However, some states such as Pennsylvania and North Carolina require a waiting period before filing a petition for divorce. These waiting periods start when one spouse moves out of the marital home, but this is not recognized as a legal separation.
Am I still legally married if I get a legal separation?
Yes, you are still legally married if you get a legal separation. Your marital status will not change. You and your spouse are still entitled to a married couple’s health insurance and tax benefits. After separation, the court will no longer consider your assets marital property.
What if we reconcile?
If you decide to reconcile with your spouse after legal separation, you can choose to cancel it by petitioning the court. You will need another prepared agreement, notarized by a notary public, that clearly states you would like to cancel your legal separation and its terms.
Since you’re legally married after separation, you need nothing else to continue your married life together.