Legal separation, in most states, is a status conferred by the court on married couples who are considering divorce. Legal separation is also sought by couples who need time away from each other in order to address their marital problems. It is very similar to divorce in several respects, at least in most states, according to FindLaw. When children are part of the marriage, court-ordered visitation may be put into place in order to protect the best interests of the children.
Concept Behind Legal Separation
Courts most often grant a status of legal separation when a couple is contemplating divorce. Some states require a period of legal separation before a divorce proceeding can be filed. When the court separates a couple in this manner, it must make certain that ongoing matters, such as finances, housing, and child rearing, continue until the divorce stage is reached, or the separation is discontinued. While a person can always just walk out of a marriage, it isn't advised. Many legal matters, like who pays the mortgage, or how a joint checking account is used, need to be resolved, at least temporarily.
Visitation
When a court grants a couple a legal separation, the question of what happens to their child is also handled by the court, according to FindLaw. The court will usually perform a fitness study, or conduct a hearing to determine the best interests of the child. The court then orders that the child reside with one of the parents, known as the custodial parent. The other parent is granted visitation to maintain the relationship. This process is very similar to setting visitation in divorce cases.
Types of Visitation
The court can order one of several types of visitation programs in a legal separation case. One type, the most liberal, permits the non-custodial parent to have overnight visits with the child in his home. These visits are often scheduled to happen every other week. Another type of visitation, the most restrictive, is supervised visitation, which limits the visits of the non-custodial parent to short periods of time, spent either in the custodial parent's home or the home of another relative. Overnight visits are rarely permitted in supervised visitation, according to FindLaw.
Parenting Plans
Many courts order couples who are legally separating go through the same mediation or parenting planning as divorcing couples. The couple attends several sessions with a professional family mediator and works out a program and a plan for handling visitation in a way that satisfies everyone's needs, especially the child's interests. Once this parenting or visitation plan is codified by the court, it has the force of law. Couples cannot modify these plans without court approval.
Modifications to Visitation
Couples can approach the court in good faith to seek modifications to their visitation orders during the legal separation. While not every change in the plan, such as switching a particular weekend visit, needs to go before the court, major changes should be reviewed by the court. When major conflicts arise, such as reneging on the agreement, couples should go back to court to seek help. This is the only way to protect personal interests and the child's best interest in the process.
Abandoning Visitation Plans
Individuals working within a legal separation agreement and visitation plan, do have the right to abandon the visitation plan all together. No court will force a parent to visit his child. However, doing so will have consequences at the divorce stage, says James Stewart, author of "Child Custody A to Z: Winning with Evidence." Deciding you don't want custody of the child, and instead want to give the child to your legal separated spouse is possible, but the court should be involved. This action, too, can have consequences during a final divorce proceeding. In some cases, the court can order the child to be raised in a foster home until the final disposition of the marriage is decided.
References
- FindLaw: Separation and Separate Maintenance
- FindLaw: How Child Custody Decisions Are Made
- "Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn't Last"; Mimi Lyster; 2007
- "Child Custody A to Z: Winning with Evidence"; Guy J. White; 2005
- "The Child Custody Book: How to Protect Your Children and Win Your Case"; James W. Stewart; 2000
