The Disadvantages of a Legal Separation

By Beverly Bird

Ending your marriage is a highly personal endeavor. What worked for your friends when they broke up may not be the best way for you, your spouse or your children. Most states recognize this and offer a variety of options from annulment to separation to absolute divorce. If you elect a legal separation, there can be a few downsides.

Ending your marriage is a highly personal endeavor. What worked for your friends when they broke up may not be the best way for you, your spouse or your children. Most states recognize this and offer a variety of options from annulment to separation to absolute divorce. If you elect a legal separation, there can be a few downsides.

Judicial Separation

The term "legal" separation typically means a judicial separation, and not all states offer this option. In some states, the process goes by a different name. For example, in Maryland, it's called a limited divorce, and in New Jersey, it's a divorce from bed and board. In any case, the legal process is virtually identical to a divorce. You must file a petition or complaint to start the proceedings, and you must serve a copy of the paperwork on your spouse. You can then try to work out a settlement agreement, resolving issues between you such as custody or property allocation, and the terms can be incorporated into a decree or judgment of separation. If you can't reach an agreement, you'll end up in court where the judge will decide matters for you. In either case, you'll probably spend just as much money and time trying to separate as you would have if you had pursued a divorce instead.

Divorce is never easy, but we can help. Learn More

You're Still Married

After you receive a decree or judgment of separation, you're still married. You can't remarry or enter into a registered domestic partnership in states that recognize them. You may not even be free to start dating again, because technically, you still have a spouse. In some states, such as Maryland and Tennessee, it's considered adultery if you enter into a sexual relationship with a new partner. If your spouse decides she wants a divorce instead, she can file on adultery grounds and this might affect issues such as property division or alimony.

Inheritance Rights

Another drawback to legal separation is that it doesn't always terminate either spouse's right to inherit from the other. Claims to a portion of the decedent's estate are still valid because the marriage never legally terminated; you only asked the court for an order dictating the terms under which you would live separate and apart. If you don't want your spouse to inherit from you, this rule could throw your estate plan into turmoil. You can usually protect against it, however, if you include a waiver of inheritance in your settlement agreement. You can also draft a post-nuptial contract in which both of you waive your inheritance rights post-separation.

Two Lawsuits

A legal separation might work well if you want to stay married forever, you just don't want to live together. If you reach a point where you want to end your marriage entirely, however, your state may not provide an option for converting your separation decree to a final decree of divorce. For example, in California, you have to start the whole legal process all over again, asking the court to actually end your marriage this time. This means twice the expense.

An Alternative

In states that don't recognize the judicial separation process, you can still separate in a legal sense while avoiding some of these pitfalls. For example, in Florida, you can enter into a separation agreement, and it's a binding contract after you and your spouse sign it. It's not typically enforceable in family court, but if your spouse breaks its terms, you can file a lawsuit in civil court to compel him to do what he said he would do. You can waive inheritance rights in such an agreement, and you may later be able to simply incorporate your agreement's terms into a final decree or judgment of divorce if you decide to end your marriage entirely. This may depend on your state's rules, however.

Divorce is never easy, but we can help. Learn More
What Does Legal Separation Involve?

References

Related articles

How Do I File for Legal Separation in Nebraska?

Only a handful of states recognize legal separation -- a separation that occurs when you receive a judgment from the court, not when you just sign a separation agreement with your spouse. Nebraska is one of these states and the procedure is virtually identical to filing for divorce. At the end of the litigation, the court will issue an order for the division of marital property, custody and support. The greatest difference is that with a judgment of separation -- as opposed to divorce -- neither you nor your spouse are free to marry again.

North Carolina Divorce a Year After Separating or Signing a Separation Agreement

North Carolina is somewhat unique among states in two respects: spouses can divorce without first resolving issues of custody, support and property, and the state has abolished fault-based divorce. Only two grounds exist for divorce: the incurable insanity of your spouse, or a one-year separation. Because most spouses are not incurably insane, this leaves many divorcing couples with only one option -- to separate a year before one of them files.

What Are the Laws in Michigan for People Who Separated for Years But Now Want a Divorce?

Spouses might decide to live apart for a while for any number of reasons. They may be unwilling to totally pull the plug on their marriage because of finances, issues with insurance or children they have together. In Michigan, a period of separation has little effect on an eventual divorce. But how you've memorialized the terms of your separation – if you've even bothered to do so at all – can ultimately have an impact on your divorce proceedings.

Get Divorced Online

Related articles

Legal Separation & Alimony

Unlike child support, courts usually aren't under any obligation to order alimony. It's designed to provide both ...

How to Separate in a Marriage

Divorce isn't for everyone--at least not immediately. For any number of reasons, spouses might want to live separately ...

Arkansas Laws for Separation

Marital separation can be particularly complicated in Arkansas because the state recognizes two types of marriages and ...

Separating vs. Divorce

Whether to legally end your marriage or just establish a separate life from your spouse is a highly personal decision. ...

Browse by category