Do I Have to File My Legal Separation With the Court?

By Andrine Redsteer

Married couples may choose to legally separate for a number of reasons. Whatever those reasons may be, however, legal separation is very different than simply living apart. Sometimes, married couples physically separate before filing for divorce -- that is, they choose to live in different residences without going to court. This type of separation doesn't have the legal significance that legal separation has because a legal separation must be filed with a court.

Married couples may choose to legally separate for a number of reasons. Whatever those reasons may be, however, legal separation is very different than simply living apart. Sometimes, married couples physically separate before filing for divorce -- that is, they choose to live in different residences without going to court. This type of separation doesn't have the legal significance that legal separation has because a legal separation must be filed with a court.

Legal Separation Vs. Divorce

Legal separation differs from divorce in that legally separated couples are still technically married and are not free to marry other people. Sometimes, legal separation leads to divorce. However, a legally separated couple may also choose to reconcile. Although state law varies, a couple may not need to seek court approval to reconcile; moreover, depending on your state, a legal separation often only lasts for one year. If a legally separated couple does in fact decide against reconciliation and wishes to divorce, they may file for divorce in a separate action.

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Reasons for Legal Separation

A couple may choose to legally separate as a prelude to divorce, somewhat like a trial divorce. Other times, a couple may choose legal separation over divorce because they want to live apart and divide property as though they're divorced, but they're morally opposed to divorce for religious reasons. However, a married couple may also choose to obtain a legal separation instead of a divorce for financial reasons such as continuing health insurance or tax benefits.

Legal Separation Must Be Filed in Court

In those states that allow it, legal separation is a legal proceeding that culminates in a court order from a judge. In order to do this, you must first file the required legal separation documents with the court. In addition to filing the petition for legal separation, you also must typically submit documents pertaining to any other requests you have, such as property division, spousal support, child custody, and parenting time. The requests you make of the court depend on the reasons you are asking for the separation, as well as your circumstances.

Court Procedure

Although state law varies, filing for legal separation is not unlike filing for divorce. Generally, you must file a petition for legal separation with the court in the county where you reside. Furthermore, you must explain why a legal separation is being sought. In other words, you must indicate grounds for legal separation, such as "irreconcilable differences," not unlike divorce. If you and your spouse cannot come to an agreement as to the terms of your legal separation, you generally must serve a summons to your spouse. In Washington State, for example, you don't need to serve your spouse with a summons if he agrees to waive notice by filing a joinder form.

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References

Related articles

Does Arizona Automatically Turn a Separation Into a Divorce?

Getting a divorce is a last resort for married couples. In some cases, spouses may wish to pursue legal separation as a trial run for a divorce or because they do not meet Arizona residency requirements. Although a divorce may occur after legal separation for some couples, a divorce requires a separate action and never occurs automatically. Understanding the similarities and differences between divorce and separation in Arizona, as well as what information the court requires, will assist you and your spouse in making decisions regarding the future of your marriage.

How to File a Motion for Divorce if a Spouse Is Stalling

If you want a divorce, but your spouse is stalling, you can still get a divorce. All 50 states now offer a no-fault divorce option that allows one spouse to file for divorce on the grounds that the marriage partners have irreconcilable differences, even if the other spouse is opposed to the divorce. The paperwork that begins this process is typically called a "petition" or "complaint" for divorce -- not a motion.

What Does Legal Separation Involve?

Legal separation can be difficult to understand because the same process isn't recognized in all states. In some jurisdictions, you must simply sign an agreement with your spouse to become officially separated. In others, you must involve the court. Universally, however, a legal separation defines the terms of living apart. The differences lie in how you achieve this.

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