Understanding Marital Separation Laws
Legal separation has different names across the United States. Some states refer to it as “judicial separation” or “limited divorce,” while others call it “separation from bed and board.” Some states mandate couples be legally separated before divorce proceedings.
Couples need between six months and two years to separate legally. However, your state determines the specific duration. If the estranged partners live in a state without the right to a legal separation, they could live separately and enter into a formal separation agreement.
Legal separation allows a couple to live apart and formalize their divorce procedure via a written agreement or court order. The order will indicate the support a partner will pay to the other.
If the spouses have children, the court order will outline the processes the estranged partners will follow on custody and visitation. It is essential to note that a separation does not legally end a marital union.
Spouses’ Rights during Separation
In a legal separation proceeding, a court can decide issues like custody and support, property division, and alimony. However, as noted above, the couple remains legally married and cannot remarry until they get a divorce.
The typical issues that arise between separating spouses are:
- Whether a spouse is entitled to tentative alimony
- The amount a spouse should pay as child support
- The debts each partner is to shoulder
- Rights to the family house, including if either partner can remain in the home
Is a Legal Separation Necessary?
Some spouses settle for legal separation because their religion frowns at divorce. Others attempt a legal separation to gauge their relationship and commitment in a troubled union. Whatever your reason for taking this route, it gives you and your spouse the legal framework to work within.
For example, the separation order will give you some solution to approach the court for enforcement if your estranged partner reneges on paying child support and alimony. In other words, a judge can force the unyielding partner to pay. You cannot enforce the overdue payments without a separation agreement or legal separation backed by a court order.
The court can charge the defaulting spouse for contempt if you have a separation order. The consequences of contempt may be penalties, monetary fines, or imprisonment.
Also, legal separation stabilizes some turbulent relationships while the couples try to determine if they will remain married or dissolve the marriage. Hence, a legal separation is highly advantageous to you.
Why Should You Consider a Legal Separation Instead of a Divorce?
Deciding between a divorce and a legal separation is often an issue of personal preference. Some do not like divorce because it is against their personal and religious beliefs. Hence, they favor a legal separation, which allows them to live apart while still married.
A legal separation sustains your relationship to a certain extent. For instance, it makes you eligible for some benefits, such as pensions and social security benefits, which are provided to widowed spouses.
You may see a legal separation as a stopover en route to divorce. It permits you and your partner to settle crucial cases, like child custody and finances, while maintaining the union and determining the way forward.
It is essential to understand that you can reverse a legal separation, but a divorce is permanent. Also, a legal separation may benefit your kids because you remain married to your co-parent. The impact is not often as devastating as a dissolution.
How to Obtain a Separation
There are numerous legal separation types. For instance, there is a trial separation, an informal separation during which spouses live apart to see if a separation or dissolution is the ideal solution for their situation. Several couples adopt this style when going through marital crises.
You and your partner can separate anytime for any duration without involving the court. Separation occurs when you and your spouse live apart. However, a legal or written separation occurs when a court separates you and your spouse.
Not every jurisdiction offers the option of legal separation. Thus, check your state’s laws before proceeding with your plans.
If your state offers legal separation, you can tender a separation agreement to initiate the process. Alternatively, you may file for a separation, similar to how people file for a dissolution.
You may have a trial separation if your estranged lover disagrees with you. It is crucial to consider legal separation or divorce when there are lingering crises in your marriage.
Must Separation Happen Before Divorce?
Most states allow couples to divorce without any legal separation. However, the couples may decide to live apart while awaiting the divorce. Some states even allow them to keep cohabiting until the final divorce judgment.
However, a handful of states mandate a separation period before granting a divorce. A separation agreement may quicken the divorce process in some jurisdictions. However, allow your lawyer to enlighten you on the best route for your case.
“It is crucial to emphasize that the courts may not necessarily follow the recommendations in your agreement. For instance, the court can adjust the child custody, support, and visitation terms to suit the children’s best interests,” says attorney Matthew Dolan of Dolan Divorce Lawyers, PLLC.
It is adulterous to engage in any sexual relationship with another person during your separation because the court still considers you married. The court will not change its stance on this even if you have any “dating clause” in your separation agreement.
Drafting a Separation Agreement
A lawyer is in the best position to draft your separation agreement. It is also ideal for your spouse’s attorney to be involved in the process.
It will ensure that both parties are making an informed or guided decision. Avoid having a lawyer with a conflict of interest attempt to represent you and your estranged spouse.
If you have a court order, you can tell the court to hold your partner in contempt of court for breaches. However, your separation agreement is not a court order. You can sue your partner for violation of the contract and for defying the responsibilities captured in the separation agreement.
When You Need to Speak with an Attorney
Contact a divorce or family law lawyer when considering a legal separation or divorce. The lawyer will enlighten you on your legal options. They will ensure you make an informed decision during a challenging marital period.
Also Read: The Value of a California Personal Injury Lawsuit
