A couple can seek legal separation (separate maintenance) by a court or informal separation, which eliminates costly expenses, including attorney and court costs. During time of separation, a couple can either reconcile any differences or may proceed onto the next step seeking a legal divorce. Most states require a couple legally separated by residing in different location at all times, which does not include separate bedrooms in the same house. A couple living apart does not constitute a legal separation. Some countries or states require a prerequisite of a legal separation for period of time, before filing for a legal divorce. Some couples can resolve their difference mutually during a separation by written agreement, which is drafted by a lawyer. However, desertion is different from a separation, which is recognized by courts, when one of the parties leaves without the intention of returning. Contrary, “Constructive desertion” occurs when one of the parties, forces the other person to leave. In such a situation, a court does not penalize a defendant for leaving, for their own protection or that of a child.
A couple may seek a trial separation, which is easily reversible then a legal separation, and hopefully through counseling will resolve problems. Resolving problems during an informal separation, does not involve the costly expense for hiring attorneys. Hopefully, mutual equitable solutions can be ascertained, regarding working arrangements, possession of car, bank accounts, credit cards, child custody or any other personal items or matters. However, property division would require legal advise from an attorney. During this time, a couple can live together, but not necessarily sleep in the same room or bed. A formal separation despite being a costly expense, incurring time and pain, maybe be necessary, when a couple cannot resolve their differences. The process and procedures for obtaining a legal separation is the same for “Dissolution of Marriage,” except the couple is still married. A court will govern what will happen during a legal separation, regarding issues of property division, child custody, alimony or spousal support, (If their incomes are substantially different). Typically, a court will have the power to resolve as part of a legal separation, any and all issues, that would be normally be resolved in a divorce. A marital settlement agreement is signed by both parties, and becomes a valid legal contract that is enforceable, if any terms are violated. A marital settlement is recognized in all states. A martial settlement agreement is not a divorce and cannot legally end a marriage. The terms of a separation agreement may be changed through a separate written agreement. Any part of a settlement agreement, regarding parenting and support of children, must be reviewed by a court, which ensures rights of the children adhere to their best interests.
A couple that is legally separated, may either live together or live in separate residences, for any number of reasons, including can’t tolerate living together, continue receiving medical insurance by the other’s spouse’s company, and some religious beliefs prohibit divorce, but allow a legal separation, couple can live apart. Sometimes spouses may wish to remain legally separated, long enough to qualify in order to receive Social Security or military pension benefits, prior to a divorce. Any time during the process for obtaining a legal separation, either party may request the court to convert the proceedings, into dissolution of marriage or divorce. Most jurisdictions require a waiting or “cooling off” period, before a court will issue a divorce judgment. Beware, after a person obtains a final Decree of Legal Separation, they must go back to the court and file Petition For Dissolution of Marriage, if the legal separation wants to be changed to a final divorce.
When a couple seeks a separation, the person moving out, should consider the following: If the couple is living in a rental community, the person moving out, should remove their name off the lease and utility bills (gas, electric, phone, cable, trash, paper, etc.), because you maybe held liable for any unpaid past due payments. Forward your mail to a post office box, close friend, relative or new permanent home address. Make copies of all tax records for the past six years. Beware any past taxes due are still your responsibility. Make a note of all address, phone numbers, account information, pension accounts, bank and credit accounts, insurance policies, and any other financial paperwork, that maybe divided during the separation or legal divorce. Place a freeze on all joint credit accounts, which prevents you from incurring debts, if your spouse fails to make any future payments. List all items in a safety deposit (preferable take pictures), which maybe divided later and take any personal items. Pack up all personal belongs, including: Clothing, medicine, family heirlooms, mementos, and any items you personal purchased yourself or received as a personal gift.
Certain states have their own laws regarding legal separation or do not recognize that status. According to Colorado law, parties who have been granted a decree of legal separation do not lose their inheritance rights. The state of Florida, Georgia, Idaho, Mississippi, Pennsylvania, and Texas do not accept or can’t file for a legal separation. However, in the state of Florida, child support and alimony must be paid during a separation. In the state of New York, one year after filing of the Court’s judgment of separation, either spouse may sue for “no-fault” divorce, based upon one year of living apart.
Couples should review their insurance coverage, regarding when coverage may be terminated, in the event of a legal separation.
