Legal separation is a process similar to divorce, in which you and your spouse make permanent decisions about the separation of your property and custody of your children. Simply moving out of the house does not create legal separation. Instead, to become legally separated from a spouse, you must file a request for separation with the court and undergo the legal separation process. Not every state offers legal separation, but most do.
Step 1
Go to your local county courthouse and ask the clerk for a petition for legal separation. In some states the form is called a "complaint." Some courthouses will have a special family law division with its own clerk, who can give the appropriate form.
Step 2
Complete the petition form, according to the instructions that come with it. The petition for legal separation will require basic information about yourself and your spouse. You must be able to prove at least one of you is a legal resident of the state.
Step 3
Give the legal separation petition to the clerk of court for filing, and pay the filing fee, which varies according to where you live. It can be anywhere from a few to dollars to $100 or more, although some states will waive the fee if you can show inability to pay and submit the appropriate form.
Step 4
Ask the clerk of court about how to have the petition served appropriately on your spouse. In some counties, the sheriff will provide this service for a small fee, and you may be able to arrange this through the clerk directly. In other counties, you will have to arrange with the sheriff on your own, or hire a professional process server.
Step 5
Negotiate directly with your spouse, or through your attorneys if you have them, to reach agreement on matters such as child custody and support, the division of property, and the payment of separate maintenance. Alternatively, you can hire a professional mediator to help reach an agreement.
Step 6
Draft a document called a separation agreement containing all the agreed-upon terms of your separation and file it with the court for approval. If the separation is granted, the agreement will be issued by a judge with the effect of a binding court order. Alternatively, you can schedule a hearing to let the judge decide issues on which you cannot agree. Once all issues are finalized or approved by the judge, she will make your legal separation final.
Tips and Warnings
- The website for your local state court may provide you with a list of the forms needed to complete legal separation. These generally include financial and property disclosures and information about child support and custody. There may also be instructions on how to complete the form and other free legal resources. Many states also allow service of process by any an uninterested party over the age of 18, but if you go this route you must be sure the person who serves process files an affidavit of service with the court.
- In the event you and your spouse cannot reach agreement on one or more terms, you can request a trial on the issue. You and your spouse will be able to present evidence before a judge, who reach a decision you can incorporate into your separation agreement. Unless ordered by the court, you shouldn't accept terms in separation you wouldn't be prepared to see become permanent in a divorce. Though legal separation does not terminate a marriage, it often leads to divorce. Conversion to divorce is relatively simple because most courts presume the terms of the separation agreement will carry over to the divorce unless there's a compelling reason for a change.
