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.

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.

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.

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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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Can a Divorce Waiting Period Be Waived?


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How to Obtain a Legal Separation if a Spouse Refuses to Leave in North Carolina

Unfortunately for some spouses in North Carolina, separation is often the only way they can obtain a divorce. The state does not recognize fault-based divorce, which means you must either separate from your spouse for a year before you can file or your spouse must be legally insane. North Carolina does not allow you to live under one roof during your separation; one spouse must move out and establish his own residence. Therefore, if your spouse refuses to leave the marital home, getting a divorce will be more difficult. However, there are ways around this, such as filing for legal separation instead.

How to File a Divorce Disclosure Statement

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Can You File for Divorce Anywhere?

The divorce process is governed entirely by state law. Often, significant differences between states regarding the recognized grounds for divorce and how matters related to custody, property, and spousal support are decided. However, you are not free to simply file in any jurisdiction you choose; you must meet the state specific residency requirements. These laws require you to have some connection with the state before pursuing a divorce action.

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