Does Going From Legally Separated to Divorced Change Custody?

by Beverly Bird

Custody terms are rarely ironclad or irrevocable. Children grow older and their needs change, and parents’ lives move on after divorce. When circumstances change, parents can always go back to court to modify their custody arrangement, whether it's incorporated into a separation agreement or a divorce decree. However, the process of moving from separation to divorce usually does not, by itself, change custody terms.

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Types of Legal Separation

The changeability of your custody terms depends somewhat on how you became “legally separated.” Depending on your state, there are usually two different paths to a legal separation. In some states, the process is very similar to divorce. You must file a petition or complaint for separation, as you would a petition or complaint for the dissolution of your marriage. You must either come to an agreement with your spouse regarding property, custody and support or a family court decides these issues for you after a trial. The court then memorializes the terms in a legal decree -- not for divorce, but for separation. In other states, you can become legally separated by signing a marital settlement agreement with your spouse, resolving issues of custody, property and support. This separation agreement is usually not enforceable in family court, but is a legal contract all the same. You can enforce it in civil court.

Filing for Divorce

When you’ve entered into a marital settlement agreement, that agreement remains in place until either you or your spouse eventually file for divorce. If you don’t file for divorce, it’s enforceable indefinitely. If you do file for divorce, the court usually attaches your agreement to a final divorce decree. If either you or your spouse want to change the agreement's custody terms, it’s a simple matter of not consenting to its submission to the court. However, you’d have to come up with a new or revised settlement agreement or go to trial so a judge can rule on a new custody arrangement for you.

Conversion to Divorce

If you have a decree of separation, the custody terms are somewhat more difficult to change. Most states recognize legal separation decrees and will convert them to divorce decrees at the request of either spouse after a certain period of time, usually three to six months. Some state courts will convert the separation into a divorce without the consent of the other spouse. In this case, the custody terms generally carry over from one decree to the other.

Modifications to Custody

Even after your custody arrangement becomes part of a divorce decree, either you or your spouse can change it if circumstances warrant it. For example, if you had a separation decree and your spouse petitioned the court to convert it into a divorce decree and the custody no longer works for some reason, you can file a motion with the court to modify the decree. However, most states will only order such modifications if there’s been a significant change of circumstances, such as your child is now a teenager and she wants a change in custody or something significant has occurred in the home wherein she would be better off living with the other parent. The parent requesting the custody modification usually has the burden of proof to convince the court the change exists and it’s detrimental to the child.