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

By Jennifer Kiesewetter, J.D.

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

By Jennifer Kiesewetter, J.D.

A legal separation occurs when a married couple chooses to live apart but remain married. When couples legally separate, they must file documents with their local court and obtain the judge's consent through an order.

Person removing wedding band

Separation vs. Legal Separation

Many married couples decide to separate for a period during difficult points in their marriage. However, living separately without filing the arrangement with the court doesn't change the couples' legal responsibilities. For example, if a couple separates, they have the same duties to their children, to their home, and their expenses as they would if they were still married.

In a legal separation, the arrangement is permanent, much like a divorce. Unlike a trial period separation, the court decides issues related to child custody, visitation, and property division in a legal separation.

Legal Separation vs. Divorce

Although a legal separation is similar to the permanency of a divorce, there are fundamental differences. For example, in a divorce, your marriage ends, meaning you can marry someone else as you're once again single. In a legal separation, although you're officially living apart, you're still legally married to your spouse. You can still make financial and medical decisions for your spouse as well as have rights to your spouse's property, but in a divorce, you can't.

On the other hand, legal separations and divorces are similar in many ways. For example, a judge may decide upon child support or visitation in both cases. Additionally, a court may rule on property or asset division as well as continued spousal support and attorney fees. These decisions can only be modified by a court, not by the couple.

Impact of Legal Separation

To understand how a legal separation impacts you and your family, you should check the state laws in your area to see what rules apply. Some states may require you to live apart for a certain length of time before filing with a court. Other states may base the division of property or assets on whether the couple eventually plans to file for divorce.

Couples may opt for legal separation as opposed to divorce for financial reasons, such as federal tax benefits of being married, or for religious reasons. Additionally, when couples legally separate, they can retain their spouse's health care benefits, since they're still married. Depending upon your state, you can file under similar grounds to that of divorces, such as irreconcilable differences, abandonment, cruelty, or adultery.

Process to File in Court

To file a legal separation in court, check with your local court clerk's office to see what paperwork or forms they require. Since each state has different laws, you'll want to make sure you're following your local rules.

Typically, you'll initiate the process by filing a petition for legal separation with your local, county court. In this petition, you'll explain the grounds of the separation, such as irreconcilable differences, or incompatibility. If you and your spouse agree on the terms of the separation, such as child support or division of property, then you'll file your agreement with the court. The judge will review your paperwork and approve your separation.

If you cannot agree to the separation itself or its terms, then you'll need to have the court documents delivered to your spouse. Your local court can instruct you on which methods of delivery, or service, are acceptable. Each couple's situation is different. Although legal separation may be appealing, you'll need to explore the pro's and con's of such arrangement, deciding if it's right for you.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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