In most states, a legal separation means a couple is bound by a court order outlining the terms of their separation. The separation agreement will generally include issues of child custody, visitation, child support, spousal support and division of marital property and assets. Each state establishes its own laws and procedures regarding legal separation. Although couples in all states can generally prepare legally binding agreements on divorce issues, not all states recognize legal separation as a distinct marital status.
If a couple decides to divorce after filing for a legal separation, the agreements outlined in the separation agreement often act as the basis for the divorce proceeding, explains Jeffrey A. Landers, a certified divorce financial analyst. A legal separation agreement should include all significant issues that would generally be included in a divorce decree, including detailed child custody and visitation schedules and exact amounts of child and spousal support payments, which generally must be calculated using state-specific formulas. Additionally, a separation agreement should typically discuss who is living in the marital residence and how the couple is handling debts, assets and shared property during the separation.
Negotiating Separation Terms
A couple may choose to attend mediation or retain attorneys to help create a separation agreement that is mutually acceptable. If the couple jointly prepares and agrees to the terms of the separation, the court will generally approve it without a hearing. If one spouse prepares a proposed agreement but the other spouse does not agree to it, the spouse may propose an alternative counter-agreement or simply outline the issues with which she disagrees and submit her objections to the court. If the couple cannot agree on the separation terms either on their own or after working with a mediator, the court will typically hold a hearing to decide on the contested issues.
Filing the Paperwork
To make a legal separation official, couples first need to meet residency requirements for their state. Thus, if the couple has moved recently, they may need to wait to file for legal separation until they meet their state's statutory requirements. Once the couple has completed the separation paperwork and has meet residency requirements, they generally must file their petition for separation with the clerk of the court in the county where they reside. In most instances, they will need to pay a filing fee at the time they submit their petition. If the couple is not filing the separation agreement jointly, the spouse filing for separation must serve his spouse with a copy of the petition and proposed separation agreement. Acceptable methods of service vary by state, but may include certified mail or use of a private process server.
Separation as a Legal Status
Some states, such as North Carolina and Virginia, require that a couple legally separate as a prerequisite for no-fault divorce -- that is, divorce that does not stem from the negative actions of one spouse. Other states, including Florida, Pennsylvania, Georgia and Texas, do not recognize legal separation at all. In most states, however, once a couple has legally separated, the court will allow them to remain in this status indefinitely. That said, some states, such as Indiana, only allow couples to remain separated for a year, at which point, they must either file for divorce or reconcile.