How to Become Legally Separated From a Spouse

By Anna Green

In most states, a legal separation means a couple is bound by a court order outlining the terms of their separation. The separation agreement will generally include issues of child custody, visitation, child support, spousal support and division of marital property and assets. Each state establishes its own laws and procedures regarding legal separation. Although couples in all states can generally prepare legally binding agreements on divorce issues, not all states recognize legal separation as a distinct marital status.

Separation Agreements

If a couple decides to divorce after filing for a legal separation, the agreements outlined in the separation agreement often act as the basis for the divorce proceeding, explains Jeffrey A. Landers, a certified divorce financial analyst. A legal separation agreement should include all significant issues that would generally be included in a divorce decree, including detailed child custody and visitation schedules and exact amounts of child and spousal support payments, which generally must be calculated using state-specific formulas. Additionally, a separation agreement should typically discuss who is living in the marital residence and how the couple is handling debts, assets and shared property during the separation.

Negotiating Separation Terms

A couple may choose to attend mediation or retain attorneys to help create a separation agreement that is mutually acceptable. If the couple jointly prepares and agrees to the terms of the separation, the court will generally approve it without a hearing. If one spouse prepares a proposed agreement but the other spouse does not agree to it, the spouse may propose an alternative counter-agreement or simply outline the issues with which she disagrees and submit her objections to the court. If the couple cannot agree on the separation terms either on their own or after working with a mediator, the court will typically hold a hearing to decide on the contested issues.

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

Filing the Paperwork

To make a legal separation official, couples first need to meet residency requirements for their state. Thus, if the couple has moved recently, they may need to wait to file for legal separation until they meet their state's statutory requirements. Once the couple has completed the separation paperwork and has meet residency requirements, they generally must file their petition for separation with the clerk of the court in the county where they reside. In most instances, they will need to pay a filing fee at the time they submit their petition. If the couple is not filing the separation agreement jointly, the spouse filing for separation must serve his spouse with a copy of the petition and proposed separation agreement. Acceptable methods of service vary by state, but may include certified mail or use of a private process server.

Separation as a Legal Status

Some states, such as North Carolina and Virginia, require that a couple legally separate as a prerequisite for no-fault divorce -- that is, divorce that does not stem from the negative actions of one spouse. Other states, including Florida, Pennsylvania, Georgia and Texas, do not recognize legal separation at all. In most states, however, once a couple has legally separated, the court will allow them to remain in this status indefinitely. That said, some states, such as Indiana, only allow couples to remain separated for a year, at which point, they must either file for divorce or reconcile.

Divorce is never easy, but we can help. Learn More
What Happens After a Legal Separation Is Filed?

References

Related articles

How to Get a No Fault Divorce in Arkansas

In Arkansas, you do not need to place blame on either spouse in order to seek a divorce. Instead, the courts will dissolve the marriage so long as the couple has lived separately for at least 18 months. Generally, it is easier to obtain a divorce when you are not trying to assign guilt. Additionally, the process may be less complicated and quicker if the couple can agree to the terms of the divorce, instead of arguing before the court.

Virginia State Laws on Divorce Settlements

The divorce process in Virginia allows spouses to negotiate their own divorce settlement and submit it for court approval. If a couple chooses to write their own settlement agreement, they can likely avoid a divorce trial in front of a Virginia circuit court. However, before the court may approve the settlement and finalize the divorce, the court must confirm that the settlement meets the state law requirements for a valid agreement.

Uncontested Divorce in Illinois

While cooperating and communicating with your spouse during divorce proceedings may be challenging, it can allow you to negotiate a better divorce settlement and avoid the time and costs associated with going to court. Illinois provides for a simplified divorce procedure in certain situations. Contested cases can become uncontested if the couple reaches agreement on a divorce settlement. Alternative dispute resolution is available to help couples talk through their issues and reach an agreement.

Get Divorced Online

Related articles

How to Do a Legal Separation in Ohio

By the time the courts become involved in a marriage, it is usually headed toward divorce. Less often, a husband and ...

Indiana Laws for Separation Before Divorce

Indiana law provides couples with two options if they want to end or change their marital relationship: dissolution of ...

Do I Have to File Divorce Paperwork Before Separating in South Carolina?

In South Carolina, you cannot file divorce papers before separating from your spouse except in rare cases when you are ...

How Many Days Apart Equals a Legal Separation?

Legal separation is not typically defined by the amount of time you and your spouse live apart. In many cases, it ...

Browse by category
Ready to Begin? GET STARTED