Legal Separation

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Legal Separation is also known as Separate Maintenance, Judicial Separation, Marital Separation as well as Divorce at mensa thoro (divorce from bed and board). All states except Delaware, Florida, Georgia, Mississippi, Texas and Pennsylvania recognize the documentation for legal separation, which is granted in the form of a court order.

The only difference between a divorce and a legal separation is that the status of the couple changes form 'married' to 'legally separated'. They remain legally married and cannot remarry; however, they can lead their separate lives independent of each other.

Rules for Legal Separation:

The rules for legal separation change form state to state. However, there are some common rules such as:

  • the marriage of the couple must be valid
  • they should not be cohabiting, that is, not engaging in sexual relationship
  • they should not be socializing as a couple
The other rules change according to the statute of the concerned state. The states which do not recognize the documentation for the legal separation does not have a defined set of rules regarding the legal separation. It considers above set as conditions for the separation to be granted. Many a times, the couples reach a settlement agreement and get it approved by the court so that the division of property and marital responsibilities is legalized.

Separation Agreement:

The states which do not recognize the documentation for legal separation encourage the couples to reach an agreement regarding the settlement of marital issues such as childcare, support payments, property division and sorting the other issues. This agreement is notarized and signed by the couple and then approved by the court.

It can also be used as a blueprint for the property division in the divorce proceedings. It deals with the following issues:

  • Maintenance - The couple has to make a decision regarding the support payments for childcare, alimony as well as the other payments regarding the maintenance of the family home as well as the health care of children, spouse, education of children, basic facilities to the children, spousal support, etc.
  • Division of Property - The family home, real estate as well as debts, mortgage payments and the division of the marital property acquired over the years of being married is divided mutually by the couple. If they fail to reach a decision, the court appoints attorneys and divides the property according to the state policies of equitable distribution or marital and individual property distribution.
  • Custody - The custody of children is a big issue in legal separation. The spouse who is independent and earns a respectable amount generally has to pay for the child support whereas the dependent parent usually gets the custody as it is the mother (usually). The custodial and non-custodial parents are given the visitation and custody rights accordingly.
  • Other Conditions - There are many other conditions which need to be considered. These are emergency medical expenses such as accident or extraordinary health care services necessary for a dependent spouse need to be taken into consideration and the provisions should be made accordingly.
The separation agreement is also known as settlement agreement, property settlement agreement or marital settlement agreement.

Benefits of Legal Separation:

The legal separation is a golden mean between an undesirable marriage and a bitter divorce. It is considered as a softer option than a divorce which gives the couples certain benefits which cannot be availed after the divorce is granted.

These benefits areas follows:

  • The couples who cannot opt for divorce due to religious affiliations or obligations can opt for legal separation so that they enjoy the status of being married and can lead their separate lives at the same time. For instance, the devout Catholics or Jewish people prefer legal separation in stead of divorce.
  • It acts as a trial separation in the states where it is not a pre-requisite for the divorce. The couple spend some time away and can reflect on the effects and consequences of their separation and divorce. In most cases, they reconcile after a period of separation realizing the causes as well as the effects and determined to work on their marriage.
  • They mutually decide the fate of their property as well as other assets and liabilities and thus the hold remains with them. Also, the custody and visitation rights remain with the couple and they can change these according to the state of their marriage.
  • Besides, they enjoy benefits such as insurance coverage on their spouse's policy, tax exemptions, retirement as well as pension plans and inheritance rights. Other benefits such as military and social security benefits can also be availed after the legal separation is granted.

The legal separation does not automatically lead to a divorce. If after a year or so, either of the spouses do not file for divorce, the couple remains married yet legally separated.

Here are some topics associated with Legal Separation:

Information about state specific Legal Separation

New Jersey
New Mexico
New York
North Carolina
North Dakota
South Carolina
South Dakota
West Virginia

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