A majority of states in the U.S. permit a couple to file a legal separation, according to the American Bar Association Section of Family Law. Despite some minor variations from one jurisdiction to another, legal separation rules largely are the same across the United States. The rules address both the establishment as well as the maintenance of a legal separation.
Mutual Agreement
A primary rule associated with legal separation in the United States is the requirement that both spouses mutually agree or consent to seek and obtain a legal separation order, according to the American Bar Association Section of Family Law. If one party desires a legal separation and the other wants a divorce, a court will not permit a legal separation case. A legal separation presumes that the spouses believe a valid reason exists not to terminate the marriage.
Cessation of Ongoing Marital Relationship
Although the marriage remains legally intact after a legal separation decree is issued, this type of action presumes a cessation of an ongoing marital relationship. In other words, at a minimum a rule of legal separation is that the parties no longer live together as husband and wife. Some state laws require an additional step of mandating an actual physical separation. In those states, if a couple ends up moving back in together, the legal separation order ceases or terminates.
Legal Separation Order
A true and lawful legal separation requires an appropriate court order, according to ExpertLaw. An oral or written agreement of the parties to "separate legally" does not rise to the level of a legal separation. Consequently, to be legally separated, a petition or complaint for legal separation must be filed with the court in the county where are least one of the spouses resides. The parties can enter into a settlement agreement of the type used in a divorce proceeding. The settlement agreement is made a part of the ultimate legal separation order or decree issued by the court.
If the parties cannot resolve their differences, the court will conduct a hearing or a trial to take evidence and issue a final decision in the form of a legal separation order or decree.
