Legal Separation 101: Pros and Cons

Tags: Legal Terms, Going to Court, Legal Separation

By Steffan Lawson

Published Jul 21, 2022

Legal separation is an alternative to divorce in which spouses have a court make an official ruling that they are physically separated. It is not the same as a “trial separation” in which a couple may decide to try out being separated before taking further legal action. It is a separate legal action that is recognized by the court and it may create certain legal implications, depending on the state. It may also provide an opportunity to temporarily resolve certain issues while the couple is separated. It is not a divorce and the spouses continue to be legally married.

Legal separation is recognized by most states, with the exception of Delaware, Florida, Georgia, Maryland, Mississippi, New Jersey, Pennsylvania and Texas. However, the requirements for a legal separation and how it impacts the couple may differ in different states. In states that do not legally recognize it, the couple is continued to be treated as a married couple, even if they are physically separate.

There may be several requirements before a spouse or both spouses can request a legal separation. These laws vary dramatically across states. Generally, spouses must meet specific residency requirements to qualify for a legal separation, which may require that one spouse lived in the state and the county for a certain amount of time. As stated above, some states only grant legal separations if the spouses are able to reach a legal separation agreement. If the spouses can’t reach an agreement, the court may not have the authority to order a legal separation. Some states may require that the spouse have certain legal grounds before a court can order separation, such as infidelity or cruel or barbarous treatment.

Filing for legal separation generally follows the same steps as filing for divorce. One spouse generally files a petition that sets out certain information, including identifying the parties and their children, your grounds for legal separation, establishing that one of the spouses meets the residency requirement and fulfilling other legal requirements.

The separation agreement usually states what type of relief the spouse is seeking, such as custody or spousal support. The spouse legally serves this petition and a summons to the other spouse, usually through formal service completed by a sheriff or private process server. Many states accept service by certified mail or other means. The spouses may then create a written separation agreement that outlines information about key issues, like child custody, property and spousal support. This agreement would also need to be presented to the court. If the parties do not agree on some issues, the court may schedule a hearing where it reviews evidence and the testimony of the parties and other witnesses.

Some states will require or recommend mediation in legal separation situations to try to get the spouses to reach an amicable agreement. Often, the judge will approve the agreement if the parties reached it together, but there may be certain legal rules that the judge must abide by, such as not waiving child support. The spouses may hire a family lawyer. The same lawyer cannot usually represent both spouses because of the inherent conflict of interest, so if a spouse wants a lawyer, he or she must usually get his or her own.

Once the parties reach an agreement or a separation order is put in place, the spouses are bound by these terms and must comply with them until the court later dismisses the order, modifies it or enters a divorce decree with a new set of instructions.

There are many reasons why people may choose a legal separation instead of getting a divorce. Here are the Common reasons why couples pursue a legal separation instead of divorce include:

  • Religious reasons – The couple may have religious beliefs or cultural values that do not approve of divorce, so they may decide to legally separate while still technically being married.

  • Keep medical insurance – Under most medical insurance policies, once spouses get divorced, they are no longer eligible to be on the other spouse’s medical insurance policy. Spouses may stay married but legally separate if one spouse has serious medical problems, a chronic condition or simply needs medial insurance.

  • Qualify for federal government benefits – Spouses may want to continue being married so that they can qualify for certain federal government benefits. For example, Social Security benefits may be available if the spouses reach ten years of marriage and then divorce. Also, disability benefits based on the spouse’s record may cease if the couple divorces.

  • Maintain immigration status – If one spouse is not a citizen, the couple may stay together until the spouse acquires full citizenship status or to maintain legal immigration status.

  • Lack of desire to end the marriage – In some situations, the spouses may not be ready to legally end the marriage. They may still want to work on their marriage but may want the protection that legal separation provides. The separation gives them additional time to determine if they actually want to get divorced.

  • Eligibility for military benefits – Another possible reason spouses may stay married is so that a spouse of a military member may be able to qualify for military benefits. Spouses must be married for a certain period of time in order for the spouse of the military member to receive certain benefits under the Uniformed Services Former Spouse Protection Act.

  • Preserve inheritance rights – Most states will not automatically disinherit a spouse simply because there is a legal separation while they will do so in the case of divorce.

  • Preserve other rights – There may be other rights that the spouses are able to preserve by staying legally married.

Each case is different, and there may be multiple reasons why someone prefers a legal separation instead of a divorce.

Depending on your state and circumstances, legal separation may have a minor or major impact on your life. In some situations, legal separation may automatically establish certain rights or responsibilities while in other situations, the specific language in the separation agreement will establish certain rights. Legal separation may affect the following:

  • Filing status – Depending on your state, a legal separation may affect your filing status and whether you can file jointly, married filing separate or as head of household.

  • Debt obligations – Your separation order or agreement may state a specific date establishes when separate date will be recognized so that any debt accumulated after this point is the sole responsibility of the spouse who incurs it, if you live in an equitable distribution state. However, it is important to remember that generally a legal separation agreement (or divorce decree) typically does not have bearing on the creditor’s right to pursue you for any debt that was part of a joint debt or that you had ownership of. The creditor may still be able to sue you for unpaid debt. However, you may then be able to sue your spouse or ask for the court to find him or her in contempt for not obeying the court order.

  • Other financial responsibilities – The separation agreement or order may dictate further financial responsibilities, such as the responsibility of having to close a joint bank account and credit cards, being responsible for their own household expenses, having to maintain insurance or continuing to make mortgage payments.

  • Accumulation of wealth – A legal separation may also impact what property is considered marital property. A separation agreement or order may provide a specific date after which point all acquired income or property is considered separate and subject to division in any later divorce case.

It is important to consider the potential legal implications of getting a legal separation before requesting the court order one.

The issues that are resolved in a legal separation are similar to the legal issues that are resolved in a divorce case. However, a legal separation order may only resolve certain legal issues temporarily for a certain amount of time or until the legal separation case is dismissed or converted into a divorce action. Some of these legal issues may include:

  • Child custody and visitation – Courts may award legal and physical custody of the children to one or both spouses. They may accept parenting plans and visitation schedules that the parties propose or that they believe is in the children’s best interests. These arrangements may be temporary until a more permanent solution is reached or until there is a material change in circumstances.

  • Property and debt distribution – The court can order the distribution of certain property and debt. It can order one of the spouses to have sole exclusive use of the marital home. The court may instruct the parties to keep or maintain possession of certain property. It can also order the parties to sell property if they are unable to reach an agreement about property. More permanent assets such as retirement accounts may not be part of this process. Most retirement plans require a qualified domestic relations order before a retirement account can be split. The court can also divide debt between the parties.

  • Classification of property – In some states, property and debt that the spouses accumulate while living separately may be considered separate property that is not subject to divorce. Some states classify the property depending on whether the spouse had the intent to end the marriage.

  • Child support – If the couple has children, the court will likely order that a certain amount of child support be paid. Even if joint custody is awarded, the court can still order child support. Usually, the amount of child support is based on one or both incomes of the parents and state child support guidelines, but there are situations where the guidelines do not provide for an appropriate amount of support.

  • Spousal support – The court may also order spousal support that lasts for a certain amount of time, such as during the period of separation or until the separation is dismissed or a divorce action is filed.

If the couple decides to get a divorce after they initially had a legal separation, one or both spouses can ask the family court to convert the separation agreement into the divorce order. However, the spouses also usually have the right to revise or retract any agreements made during the legal separation agreement.

Legal separation and divorce establish certain legal rights and responsibilities, and the legal issues that can be addressed by the court are similar. However, there are certain differences between these two statuses.

In a divorce, the marital relationship is severed. The couple generally does not have any legal relationship to each other, outside any responsibilities that they have toward joint property or their children. The spouses may no longer be eligible for protections provided to married couples, such as tax filing status, health insurance, retirement benefits or other rights. The spouses are able to marry other people if they so choose.

A divorce is a permanent change in the marital status of the spouses. In a legal separation, the parties are still legally married. They may be able to retain certain marital protections and benefits. The spouses cannot legally marry another person during this period of separation, even if they have been separated for years.

Some states limit the amount of time that a legal separation is valid. For example, Utah only recognizes a legal separation for up to one year, so any support issues would have to be addressed separately after this point, or the parties would have to move toward a divorce. In some states, a divorce can only be granted after a certain waiting period.

Additionally, a spouse may have to wait a certain amount of time before being able to file for divorce if there are not other grounds for divorce, such as incarceration, drug use or infidelity. For legal separation actions, there may not be such waiting periods. The spouse may not have to prove specific grounds, but in some states they still do. Courts may be more willing to make orders involved in separation agreements with less delay or less need for court hearings because the consequences are not considered permanent.

Some states only allow legal separations if the parties enter an agreement together. A divorce can be granted even if one spouse does not want the divorce.

While there may be certain benefits of a legal separation, in other situations, divorce is the better option. For example, if a spouse wants to end the marriage in order to remarry, divorce is the only way to accomplish this.

Another time when legal separation may not be a good option is if the spouses know that they want to divorce and that their marriage cannot be repaired. If they both reach this conclusion, getting a legal separation only to turn around a few months later may simply delay the inevitable, duplicate the work and increase the costs. If abuse is involved in the relationship, the abused spouse may not be able to reach an amicable agreement with the abusive spouse which may be necessary for a legal separation because the abusive spouse tries to leverage the legal issues as another form of abuse.

Because a legal separation can impact your life, children and ultimate divorce, it is important to consult with an experienced family lawyer in your state before pursuing this legal action.

Bifurcated Divorces

In some situations, a person may ask to be divorced from their spouse when not all legal issues have been resolved as of the date of the divorce decree. Some states will allow this type of divorce, called a “bifurcated divorce.”

In this scenario, the court officially terminates the marital relationship but reserves issues involving the division of property, child custody, visitation, child support or spousal support for a later date. These remaining issues may later be decided at another hearing or through a settlement agreement. Situations where this type of divorce may be granted include the following:

  • One of the spouses want to remarry and does not want to wait for the official resolution of the remaining issues.

  • There are complex property issues at stake, such as jointly-owned businesses, real estate or retirement plans that require longer to resolve.

  • A stay has been put in place on the divorce case because of a bankruptcy action.

  • There will be favorable tax treatment due to an earlier decree, even if all of the issues have not yet been resolved.

Not all states will allow for this type of divorce. If the couple is already legally separated, the couple may ask that the court keep the terms of the existing legal separation agreement in place until a subsequent hearing after the divorce is entered.