Unlike divorce, a separation is not a complete break of the legal union of marriage. A legal separation is more than one partner physically moving from the home. It’s a half-way status that comes with its own set of legal rules and criteria you must follow. Legal separation provides space that allows you to reconcile if you wish and relieves the pressure to figure out what you want going forward.
A legal separation of marriage occurs either through court proceedings or with an informal agreement. This process saves you significant legal expenses and gives you time to work out your differences. The exact definition of separation varies from state to state since divorce is defined by state laws, not federal statutes.
Most states at a minimum expect that the spouses are living in different locations during the whole separation period. It’s not enough to just be in a different room under the same roof. The formal proceeding also has legal forms that define the terms of a separation. These include which spouse is responsible for what task (i.e., bills, chores). Unlike divorce, the separated spouses are still legally married, but they are able to live independent lives.
Legal Separation Terms
Many times, just as in divorce, couples face sticky areas in a legal separation that need clarity and ground rules to follow. A legal separation agreement includes specific terms for things like child custody, division of property and financial obligations. The judge may also decide to allow for separation maintenance, which includes spousal and child support, similar to the support one spouse might receive in a divorce. The terms of the separation often carry over to your divorce proceedings should you decide to get divorced. The judge examines what is already in place and can formalize the same terms in a divorce decision unless either party wants changes to the terms.
A Precursor to Divorce
Most people assume that separation is part of the process of an eventual divorce. That is true for many couples, but others choose legal separation to allow for more time to decide. Many times a legal separation establishes legal protections for financial reasons. For example, a spouse may be concerned the other partner will trash the credit portfolio and wants to be separated immediately to protect her good credit. The legal separation process may lead to divorce, but it also leaves room for reconciliation if your time apart makes you decide to stay together.
Access to Benefits
From an employee benefits perspective, the legal separation does not end a spouse’s medical benefits from work for the recipient spouse. A divorce, on the other hand, would give grounds for the providing spouse to cut off employment medical benefits immediately.
Staying married, but separated, for at least 10 years provides eligibility for military spouses to receive benefits under the Uniformed Services Former Spouse Protection Act and to still be eligible to receive social security benefits as a spouse.
Before taking that last step into legal separation, consider the logistics. Names need to be changed or removed from bills specific to a home location for the spouse who is moving out. Taxes, bank accounts, liabilities and miscellaneous financial issues need to be addressed to avoid an argument later. Assets usually need to be divided at separation to avoid suspicion about things disappearing or being sold off. It’s not fun work, but it may be a solution that works at least for now in your marriage.
Since 2009 Tom Lutzenberger has written for various websites, covering topics ranging from finance to automotive history. Lutzenberger works in public finance and policy and consults on a variety of analytical services. His education includes a Bachelor of Arts in English and political science from Saint Mary's College and a Master of Business Administration in finance and marketing from California State University, Sacramento.