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Some Time Apart: What Is a Legal Separation?


How do courts define legal separation? Learn how separation differs from divorce and how the process works in this guide.

Every year in the U.S., nearly 800,000 divorces take place.

Are you considering getting a divorce? Are you unsure of how to proceed? Are you on the fence about whether becoming legally separated first is a good strategy?

If any of these questions resonate with you, keep reading. Explained below are the details of how legal separation differs from divorce, as well as why you might want to seek a separation from your partner.

What is Legal Separation?

As the name suggests, legal separation allows you to create space between yourself and your partner in a legal way. Some key characteristics of legal separation include the following:

  • You live in separate locations
  • You have separate finances
  • The court handles issues like child custody, child support payments, asset division, and spousal support

Legal separation differs from a regular separation because of the court’s involvement. When you choose to separate, there are financial rules and boundaries backed up by the court, as opposed to you and your partner relying on each other to ensure payments get made and children get seen at regular intervals.

Separation vs Divorce

The key difference between separating and getting a divorce is the fact that a divorce ends your marriage on a formal level. With a separation, even when the court gets involved, you and your spouse are still, in the eyes of the law, married.

When you’re filling out forms, you’ll still have to say that you’re married instead of single. You cannot get remarried during this time, and you and your partner still have a right to inherit money or assets from each other.

Benefits of a Legal Separation

There are plenty of reasons why couples choose to separate before getting divorced. Here are some of the most well-known benefits of legal separation:

Live in Accordance with Religious Beliefs

Some religions frown upon divorce. If you belong to a religion that has rules about getting divorced, you may want to consider separation.

This allows you and your partner to live apart without technically getting a divorce. As a result, you’re still following the rules, but you still get the space that you need.

Gain Extra Time for Decision-Making

Separation gives you time to live apart from your partner so you both can decide if a divorce is what you want. It creates space and allows you to still enjoy certain financial benefits, but you don’t have to finalize the divorce right away if you aren’t 100 percent ready to do so.

Remain Insured

Speaking of benefits, separation allows you to remain covered by your partner’s insurance.

If you don’t have insurance on your own, this can be a good option to consider. That way, you won’t have to worry about being uncovered while you look for a job or go through the process of signing up for your own insurance policy.

Protect Financial Interests

Separation helps both partners to protect their financial interests. For example, if you or your partner obtains certain assets or debts during the separation, they may be considered property. As a result, these assets can’t be taken from you, and debts that aren’t yours can’t be assigned to you, should you decide to proceed with a divorce.

Enjoy Certain Tax Advantages

Because you are still married when you have a separation agreement, you can continue filing your taxes under the Married Filing Jointly umbrella. This allows you to take advantage of tax breaks and enjoy a lower tax rate than if each of you filed on your own.

Set Clear Boundaries

In a perfect world, all separations would be amicable. Partners would never have to worry about getting child or spousal support, and the kids would split their time equally between homes without any hurdles. 

It’s very rare for a separation to look like this, though. In most cases, it helps to have the court or a mediator involved when it comes to establishing boundaries and ensuring that everyone is acting in accordance with them.

Make Divorce Easier

The divorce process can also be easier if you go through a separation first. If you decide after a few months that a divorce is what you want, you can convert your separation agreement into a divorce agreement and end your marriage once and for all.

How to Become Legally Separated

If you think separation makes sense for you and your partner, there are some specific steps you’ll need to take. They include the following:

Know the Rules in Your State

Start by making sure your state allows legal separation. Ensure you meet your state’s residency requirements, too.

File a Petition

Next, you’ll need to file a petition with the court. There are online services that help you do this on your own, or you can work with an attorney. 

File a Separation Agreement

You’ll have to file a separation agreement as well. Again, you can use online services for this or work with your attorney.

Have Your Partner Served

If you and your partner aren’t filing for separation as a joint pair, you’ll need to have them served. After this, they have a certain amount of time to respond.

Work with a Mediator or Go to Court

Next, you and your partner will work with a mediator to nail down the terms of the separation. You may have to go to court as well if you can’t reach an agreement during mediation.

Sign and Notarize the Agreement

Once the details are finalized, you and your partner will sign and notarize the separation agreement. It’ll be filed and kept on record with the court clerk and sent for a judge to review.

Wait for Final Approval

At this point, what’s left is for you to wait for the judge’s approval. They’ll need to sign your agreement as well, as they have to do when someone is going through a traditional divorce process.

Is Legal Separation Right for You?

Now that you know more about legal separation, how it differs from divorce, and the benefits of becoming separated first, what do you think? Does this seem like something you want to pursue?

If so, be sure to remember the tips outlined above. They’ll help to guide you through the process and ensure you don’t miss anything important.

We have lots of other helpful resources on divorce available on our site as well. Check them out today to learn more.