Legal separation is a process similar to divorce. As in full divorce, it may not be necessary to have a lawyer, but having professional legal advice can help protect your rights if there is a dispute about any aspect of the process. In legal separation, you and your spouse will divide your jointly owned property, take responsibility for debts, determine whether alimony payments are appropriate and decide child custody and support.
Trial Separation
When you and your spouse first begin to suspect the marriage isn't working any more, in all likelihood the first step is trial separation. This is not the same as legal separation and does not involve the courts or affect your legal rights and responsibilities. Trial separation simply means one of you moves out and, at least temporarily, the two of you are not living together. Some states actually require trial separation before a divorce filing.
Filing for Legal Separation
Not all states recognize legal separation, but those that do generally have lower requirements than for full divorce. Chances are if either you or your spouse live in a state that recognizes legal separation, you will be able to file in that state in the county of residence. The document that initiates a legal separation is usually called a petition. It must be filed with the court and served on your spouse, according to the laws of service of process in the state.
Purpose of Legal Separation
The process of legal separation is very similar to the divorce process because the goals are largely the same. Though legal separation stops short of terminating the marriage completely, it does involve arranging all the legal and financial aspects of your marriage to prevent future litigation. These relationships include the division of jointly held property, the payment of maintenance (support or alimony) and child custody.
Negotiation/Mediation
The first step in resolving the outstanding issues of a marriage is private negotiations between you and your spouse. These may be conducted through your respective attorneys, if necessary. Additionally, you and your spouse may seek the help of a professional mediator to help resolve issues without the law and the courts. With the exception of child support and custody, which are almost always reviewed by the courts, the private arrangements of you and your spouse are most likely to be honored when the legal separation is formalized.
Court Intervention
As part of the legal separation process, your state will most likely require the filing of various documents describing your separate and jointly owned assets and debts. Only when you and your spouse cannot reach an agreement will the court intervene to make a decision according to the law. Some states are community property states and divide marital property evenly. The majority, however, weigh various factors to reach a more fair division. Similarly, if you and your spouse cannot agree to child custody and support, the court will intervene to determine the best interests of the child. Most states have child support guidelines that are closely adhered to by the courts.
Finalization and Enforcement
When all the terms of a separation are agreed upon, either privately or by court order, they are incorporated into a document called a separation agreement. This is filed with the court and, if approved, is given binding force by a court order. Subsequently, either you or your spouse can enforce the agreement by requesting a hearing and moving to hold your spouse in contempt of court. Ultimately, if either of you file to convert the separation into a full divorce, the court is likely to carry over the terms of the separation agreement unless good reason can be shown for a change.
