Legal Separation

When parties decide to separate, but not yet get divorced, it may be necessary for them to obtain what is often called a “legal separation.” A legal separation can generally be achieved in two ways: first, a couple can simply agree to draft a contract between themselves, which sets forth all of the terms and conditions of their separation.

This contract or “separation agreement” can include provisions pertaining to separate living arrangements, support for each other and the children, custody and visitation arrangements, the use of property, taxes, insurance, and other important matters. In most states, there is no requirement that such a settlement agreement be filed with the court, or that the court be involved with the process at all.

A second, more formal approach to achieving a “legal separation” entails filing a legal action in the court system. This may be known as a Complaint for Separate Maintenance or some variation of those terms. The filing of such a legal action ultimately obtains the endorsement of the court.

The parties still have the right to settle their case, and to sign a contract or settlement agreement setting forth all of their wishes. If they cannot settle, then the judge will be asked to fix the terms and conditions of their separation arrangement. Whether the case is settled by agreement or decided by the judge, a court order or final judgment will ultimately be issued at the conclusion of the process.

Many important legal consequences arise from living separately. For example, in many states, if one spouse dies while the parties are married but living separately, the other spouse may be prohibited from claiming an elective share from the estate because he or she is not included in the deceased spouse’s will. Therefore, it is important to seek sound legal advice before proceeding with a legal separation.