Married people decide to file separation papers for many reasons. Some couples want a cooling off period when they are having marital problems. Some see separation as a prelude to divorce. Others choose separation as a permanent arrangement. The primary difference between separation and divorce is that the separated spouses are not free to remarry. The laws on separation vary from state to state, but the process is similar.
Try to reach an agreement with your spouse on all the issues of your marriage, including child custody and support, alimony and distribution of assets, and debt. Some states require a separation agreement from couples when they file papers. If you cannot agree on the issues, consider consulting an attorney, mediator or marriage counselor.
Find out where you can file separation papers by determining which state and county have jurisdiction to hear your case. You can contact a lawyer or the clerk of court in the county where you live to learn where to file.
Obtain the forms for a summons and petition from the county clerk of court or from an online legal document site, if you are handling your own separation. Ask the clerk if there are other documents you need to file, such as a cover sheet or verification. Some states make these forms available online. Many court clerks will recommend consulting a lawyer for a separation when you and your spouse cannot agree, partly because they do not have forms that fit a contested situation.
Complete the summons by listing information on your spouse and the address your spouse must respond to with an answer. If it is not listed on the court form, find out how much time is allowed by your state for your spouse to respond. Ask the court clerk or consult the state code of laws.
Draft a petition that includes all the relevant details of your marriage. State when you married and how many children you have. If you do not have a separation agreement, state how you would like the court to establish custody and visitation, financial support and the division of your property and debt.
Specify the reason you are separating and make sure you meet your state’s requirements for separation. Some states require the parties to separate before they file papers and do not require a legal reason for their separation. Some allow a husband and wife to remain under the same roof. Others require the parties to declare that their marriage is irretrievably broken.
File the separation papers with the clerk of court and keep copies for yourself and your spouse. You will have to pay a filing fee in most states. If you cannot afford the filing fee, ask the court clerk if there is a program that might help you.
Serve the summons and petition on your spouse by hiring a law enforcement officer or private process server. Some states will allow you to serve your spouse by U.S. Postal Service certified return receipt mail. In other states, you and your spouse can file jointly, which eliminates the need for service.
Provide proof to the court that you have successfully served your spouse, if it is required by your state. This is usually called an affidavit of service or proof of service.
Ask for a court hearing, if required in your state, after the time period for your spouse to respond has elapsed.
Tips & Warnings
- Consulting an attorney or relying on the aid of an online legal planner is always a good idea in a contested separation.
- Some states do not have specific legal provisions for a marital separation. A marital agreement might help couples in those states.
References & Resources
- The Judicial Branch of Arizona: Legal Separation With Minor Children
- Family Law & Divorce Law Offices of Mark E. Sullivan, P.A.: Separation Agreement Survival Guide
- Woman's Divorce: How To File For A Legal Separation
- FamilyEducation: Separation: Beginning of the End, or a New Beginning?
- Marital Litigation in South Carolina; Roy T. Stuckey
- George Doyle/Stockbyte/Getty Images