A legal separation is an official order signed by a judge that permits you and your spouse to essentially “divorce” and live apart, while remaining legally married. Most states recognize legal separations as an alternative to divorce, but some do not. If you’re wondering how to become legally separated, be aware that the process is always easiest when you and your spouse agree on the terms of separation.
Meet Your State’s Requirements
Look over the laws relating to legal separation in your state to make sure that you qualify for a legal separation. In Ohio, for example, you must prove that you, as a result of your spouse, have experienced bigamy, adultery, extreme cruelty, gross neglect, habitual drunkenness or imprisonment. Alternatively, you must prove that you and your spouse have lived separately for one year before you can petition for legal separation. Most states have residency requirements; find these by checking your state’s divorce laws. The states of Georgia, Delaware, Florida, Louisiana, Pennsylvania, Mississippi and Texas do not recognize legal separations at all.
Talk to Your Spouse
If you and your spouse agree on all the issues of the separation, including alimony, child support, custody, division of assets and any other matters that come with dissolution of a relationship, you can usually file a joint petition. This will save time and money when your case goes before a judge. If you and your spouse can’t agree on the terms, you can file a petition separately. The judge will referee the terms of the separation.
File the Paperwork
Visit your local family court and ask for the paperwork you need. Forms are available on some county court websites. You will need at least a petition for legal separation and a court summons. These forms cover your personal information and arrangements for division of property, spousal support and responsibility for any debt. If you have children, you’ll also need forms relating to custody, child support and parenting arrangements. Fill out the paperwork and file it with the clerk of your local family court. Pay the filing fee.
Serve the Papers
In most states, the petitioner is responsible for serving the papers unless you and your spouse are filing jointly. Rules vary by state, but generally, you’ll have to deliver or mail the paperwork to your spouse or employ a disinterested party known as a “process server” to serve the forms for you. As in divorce, your spouse will have a certain period in which to respond to your petition.
If your spouse does not agree with the arrangements set forth in your petition, he or she will have the right to file an objection or counter-petition. Some jurisdictions will ask you to resolve your differences through mediation. If you reach agreement, both spouses must sign and notarize a legal separation agreement, which you will file with the clerk for approval by a judge. Once filed with the court, the separation agreement becomes a legally binding contract.
Attend the Court Hearing
If you cannot resolve matters through mediation, you will have to attend one or more contested hearings in court. The judge will decide the terms of your separation after examining the evidence and listening to testimony. In some states, Arizona, for example, if one spouse does not wish to become legally separated, the court may, instead, convert the proceedings to divorce proceedings.
- 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.
- Though not required, you should hire a lawyer to consult you regarding your legal separation and speak on your behalf in court.