What Can a Spouse Waive in a Legal Separation?

by Cindy Chung
Spouses may negotiate a separation agreement on their own or with lawyers.

Spouses may negotiate a separation agreement on their own or with lawyers.

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State laws determine each spouse's rights during legal separation — these rights are often similar to the rights of spouses in a divorce. In an agreement for legal separation, a spouse can waive rights regarding assets, debts, alimony and other financial issues. Spouses can waive their own rights, but they often cannot waive rights related to their children. A husband or wife should fully understand the rights given by state law before signing a separation agreement that waives any of those rights.

Temporary Orders

Although the procedures to obtain a legal separation vary from one state to another, a spouse likely needs to file a petition, or another type of legal form, with a local court to start a case for legal separation. After a spouse files for a legal separation, the court may issue temporary orders while the case is pending. A court might order temporary alimony, access to assets, payment of debts or custody of children. A spouse may choose to waive many of the rights established by temporary court orders; however, some state laws may require automatic temporary orders which spouses cannot waive. In Washington, for example, state laws include automatic orders regarding temporary property rights when a couple files for a legal separation.

Rights Related to Children

When parents choose legal separation, they may need to negotiate a custody arrangement and financial support for their children before finalizing the terms of their separation. Each state's custody laws determine parents' rights in the event of legal separation or divorce. Some parents may wish to waive their rights to custody or child support. In written agreements, such as premarital agreements, postmarital agreements and other types of spousal agreements, parents can agree to the terms of their choosing, but courts may not uphold custody terms that negatively affect a child's best interests. In addition, state laws often require child support when parents meet the criteria to pay or receive support. Some states, like Michigan, require participation in a child support case when the parent with custody receives public assistance benefits.

Property Rights

As part of a legal separation case, the spouses often need to negotiate financial issues, such as property division and debt obligations. In general, state laws determine each spouse's rights regarding the distribution of assets and payment of debts from the marriage. However, spouses can waive the property rights established by state law by writing their own agreement for legal separation. If spouses negotiate their property settlement rather than request an order from the court, they can choose to deviate from the property distribution requirements that a judge would otherwise need to follow. As state laws regarding marital property seek to protect both spouses in the event of a legal separation or divorce, a husband or wife may benefit from researching the state's property distribution laws before waiving any property rights.

Alimony Rights

A husband or wife can waive the right to receive alimony, also known as spousal support or maintenance. Alimony provides regular financial support from one spouse to the other during a pending divorce case and after divorce. Spouses are not obligated to request alimony if they do not wish to receive it; instead, a spouse may choose to waive the right to alimony by written agreement or by accepting the other party's request that the legal separation case not include alimony. However, when spouses cannot agree on alimony as part of their legal separation, state laws often require the court to determine alimony based on a number of factors listed by state law.