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How to Become Legally Separated From a Spouse

by Louise Balle

Before you begin the process of becoming legally separated from your spouse, it's important to know the difference between being separated and legally separated. With a regular separation you and your spouse will physically live separately as a way of cooling down, knowing that a divorce is possible down the line. With a legal separation, the courts get involved and a judge will put in a final order for the separation to be recognized by law, even though the couple is still technically married. Some states will require a legal separation to occur before a divorce is filed and finalized to allow the couple time to think about the decision.

Go to your local town administration office or courthouse and ask to file paperwork for a legal separation. You need to file in the county in which either you or your spouse reside (preferably the location of the marital home). You will have to pay filing costs and a fee to have the court paperwork delivered to your spouse by a sheriff (unless you both mutually come down to the courthouse together to file the case and sign paperwork).

Wait for communication through the mail about your upcoming court date. If for some reason you cannot make this date you will need to contact the courthouse immediately to ask for a rescheduling.

Wait for the paperwork to be served to the other spouse if he was not present when you filed for separation. The other spouse must physically receive this information so that he will know when to be in court.

Go to court. Present your case for why you should be legally separated from your spouse. This could include a charge of abuse, infidelity or other marital differences that can't be resolved. The judge will consider your argument and that of your spouse to determine whether the legal separation should be granted.

Create a legal separation with your spouse if you both mutually agree by writing and notarizing a separation agreement, as another option. This agreement should include information on how the finances will be handled, who will have the children, and other pertinent details regarding the separation. Then file the separation agreement with your county clerk office.

Tip

  • If your spouse or her lawyer do not show up to court, the judge will most likely either grant the legal separation request by default or schedule another hearing. If you and your spouse cannot resolve your differences, you would then have to file new paperwork to start divorce proceedings.

Warning

  • Though not required, you should hire a lawyer to consult you regarding your legal separation and speak on your behalf in court.

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