How to Separate & Not Get a Divorce

By Victoria McGrath

Some couples separate for a short trial period, while others separate on a permanent basis with no intention to divorce. During a trial separation, you may decide to reunite or remain separated. If you expect to be separated for a long time, you may need to make long term arrangements for who will remain in your home and how your assets will be divided. A legal separation agreement can resolve many unsettled issues after a separation.

Separation Without Divorce

When you and your spouse decide to separate, you do not need to fill out any legal documents to live separately and remain married. Both you and your spouse agree on the terms of your separation, make financial arrangements to cover the mortgage and recurring household expenses, and establish a parenting plan for the children. You maintain the benefits of marriage, including health coverage, pension plans and retirement funds. You can maintain this informal arrangement as long as it suits you, or file for a legal separation as soon as the arrangement no longer works for you. However, you should be aware that you may still be liable for debts that your spouse incurs while you are still married.

Separation Agreement

Living separately from your spouse changes the dynamics of your marriage and impacts your financial situation. You and your spouse can prepare a formal separation agreement that resolves issues pertaining to property division, marital assets, outstanding debts, child custody, child support and spousal maintenance. Once you and your spouse draft and sign a separation agreement, you can enforce the agreement as a contract in civil court. If you later decide to file for a legal separation or divorce, you may need to recall your actual separation date. The separation date affects your financial resources, such as the value of your family home, pension plans and savings accounts at the time of separation.

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Legal Separation and Court Order

In many states, such as California, you can file for a legal separation. Although a legal separation and a divorce follow similar court procedures, each results in a distinct legal action. A legal separation does not indicate that you intend to file for divorce, nor does it initiate the divorce proceedings to terminate your marriage. In court proceedings for a legal separation, you and your spouse can reach a separation agreement on your own or through court-ordered mediation. When you and your spouse sign a legal separation agreement and present it to the court, the judge may approve it and merge it into your court order for a legal separation. In this case, the terms of the legal separation are enforceable as part of the court order, similar to a money judgment.

Alternatives to Legal Separation or Divorce

In some states, such as Georgia and South Carolina, legal separation does not exist as a legal option. In Georgia, you file a separate maintenance action when you need financial support but do not intend to file for divorce. The court resolves issues pertaining to child custody, child support and alimony. In South Carolina, you can apply for separate maintenance and support. The judge may approve an agreement between both parties if it appears fair to each spouse and child. Otherwise, the judge determines who lives in the family home, pays child support or receives spousal support. In New York, you and your spouse can each sign your separation agreement before a notary public and file it at the court clerk's office. Your legal separation takes effect after both signatures are notarized, and the separation agreement can be changed into a "conversion" divorce after one year.

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How to Prepare a Legal Separation Document

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