Legal separation: is it right for you?
Separation means living apart from your spouse. The law does not require you to present documents to live apart and the law does not require you to live with your spouse. To “separate” you technically do not need to do anything other than move, however, to the extent that separation affects your legal rights, you will first need to consult an attorney.
A legal separation is when a court has entered an order (much like a divorce decree) that outlines the rights and responsibilities of each spouse while living apart.
Unlike divorce, with a legal separation, you are still married, so neither can remarry and the wife cannot revert to her old name. After obtaining a legal separation, you have a court order regarding issues such as custody and support of children, paying bills, division of property and alimony while living apart. These issues are the same as those addressed during a divorce action, except that when it ends, you remain legally married and choose to live separate lives.
The process for obtaining a legal separation is the same as for obtaining a divorce, and it can be as costly and time-consuming, and then if remarriage is desired, the parties must go back to court to obtain a divorce.
For some couples, and in certain situations, obtaining a legal separation has advantages over a divorce. Those advantages include:
- Time away from the conflict of marriage to decide if divorce is what they really want. A legal separation gives time to see if the marriage can be reconciled, but understand the need for a formal agreement that establishes child support and custody, spousal support (alimony), debts and property in the meantime;
- Medical benefits, health insurance, and some other benefits for a married spouse remain in place that would end the divorce.
- Religious beliefs and moral values are not compromised, but you can live separately.
- Military spouses may want to take advantage of the Uniformed Services Ex-Spouse Protection Act (USFSPA), which requires a marriage of at least 10 years.
- To qualify for social security and other benefits for a spouse, you must remain married for 10 years or more.
It is possible for a married couple to separate and have a mutual understanding or even a written agreement without going to court. This is not considered a “legal separation”, but it can be just as effective. If you want to retain some of the benefits described above, it is advisable to retain an attorney when drafting a separation agreement to ensure that benefits are not lost during the separation period.
If you decide that a legal separation is best for you at this time, remember that if, in the future, you seek a divorce, your separation agreement may be binding and may be what the court orders in your divorce.