How to File for a Legal Separation

Before you physically separate from  Divorced Families Co parentingyour spouse, you have some homework to do. Since the individual states set requirements on how and in what manner a separation should occur, you have to research your State’s separation laws.

Some States require that you file a formal petition and have your partner served notice. Other States allow its residents the ability to physically separate for a specified time, and be prepared to swear under oath that you lived apart for that amount of time without cohabitation.

Legal Separation usually refers to the period of time a State requires a couple live separately and apart before they are permitted to file for divorce. Any cohabitation (however brief) can reset the clock on the waiting period required.

In States that require the formal petition process for separation, a written separation agreement between the two parties is required. Separation agreements will often contain the following provisions:

  • the division of all marital property
  • spousal support
  • if there are minor children of the marriage, the allocation of parental rights and responsibilities for the care of the minor children
  • the designation of a residential parent and legal custodian of any minor children
  • child support
  • if the parents choose, an authorization for the court to modify the amount or terms of spousal support, or the division of property, provided in the separation agreement
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If there are minor children of the marriage, the spouses will address the allocation of the parental rights and responsibilities for the care of the minor children by including in the separation agreement a plan under which both parents will have shared rights and responsibilities for the care of the minor children as well as a court-approved child support schedule.parenting plans

Before you get going in one direction or another you should first determine if your marriage can be saved, or even IF you want your marriage saved. Separation and divorce and its aftermath is a traumatic experience for most, so if you can avoid it, by all means do so.

States that allow legal separation

Or better yet, we should list states that do not allow legal separations (because most do). Delaware, Florida, Georgia, Maryland, Mississippi, New Jersey, Pennsylvania, and Texas do not recognize separations.

finger pointing rightLooking for divorce forms? All divorce or separation processes require that you gather all relevant forms, fill them out correctly and file the forms as directed by the court. The most efficient way to get them in front of you is to download the divorce forms, complete with instructions that hand-hold you through the process.
Types of Separation
  • Trial Separation – couples live apart for a test period in order to determine whether or not to permanently go their separate ways or to get back together again (reconcile).
  • Living Apart – in some States, living in the same home can be considered living apart even if the couple has occasional sexual relations. Living apart without the intention to reconcile can change a spouse’s property rights. For example, some states consider property acquired and debts incurred after the separation and before the divorce to be the separate property of whomever acquired the property or debt. In a trial separation (as opposed to living apart), when there is hope of reconciliation but they ultimately don’t get back together, the assets and debts acquired during the trial separation remain jointly owned until they decide to live apart, file for a separation, or pursue a settlement
  • Permanent Separation – when a couple decides to split up it is often referred to as a permanent separation. It can follow a trial separation or may begin immediately after the couple begins living apart. In many States all assets received and most debts incurred after a permanent separation are the separate property or obligation of the spouse acquiring them.
  • Legal Separation – results when the parties separate and a court rules on the division of property, spousal support (alimony), child support and custody, and parenting time (visitation), but does not grant a divorce. This type of separation is also known as Separation from Bed and Board. The money awarded for support of the spouse and children under these circumstances is often called separate maintenance (as opposed to alimony and child support). Legal separation is often used as a substitute for divorce. It occurs when there is a religious objection to divorce, or if a spouse needs medical care and cannot qualify for coverage on his or her own. One spouse will maintain coverage for the other while they remain married.

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What you should do prior to becoming separated
  • Remove your name from any utility bills. These would include electric, gas, phone, sewer, cable, phone, cell phones, newspapers, etc. We suggest giving your spouse a brief amount of time to get these services into their own name. Inform the utilities you have moved and keep a record
  • If you have your name on any leases (apartment, vehicle, etc.) inform them you are moving, and have your name removed if possible
  • Set up a forwarding address. If you are concerned about your ex knowing your whereabouts, get a post office box. Complete a change of address form with the Post Office ASAP
  • Make certain you have copies of accounts or details including account numbers for all mortgages, bank and credit accounts, insurance policies, pension accounts, and any other financial paperwork you have had in interest in
  • Copy all tax records (what you filed each year-form 1040. etc.)
  • Notify any joint credit accounts that you you will not be responsible for any further charges, and if that means closing the account, do so
  • Inventory any safety deposit box contents. You might photograph the contents. If you have any appraisals connected with any item in the box, make sure you have that. If there are personal inherited items of financial or sentimental value, consider moving them to a box in your name only
  • Plan ahead by making of list of items you want to take with you. Unless you plan to have a yard sale, don’t take items that will gather dust. You can get those items later. Items you may wish to take with you can include:
  1. clothing, shoes, hats and coats
  2. pictures, photos, or family heirlooms
  3. personal grooming, hygiene items
  4. school and medical records
  5. your personal computer, including any backups
  6. any other electronic tool (external hard  drives, iPods, Blackberries, PDAs, etc.)
  7. tools, outdoor equipment, recreation and sports gear, etc.
Managing the Separation

Child custody strategies

Most couples who intend to divorce begin by living apart without any formal separation procedures. Prior to no-fault divorce becoming popular, legal separations were the vehicle of choice for couples wishing to live apart and who needed to get legal authorization to do so.

As part of a legal separation, or when couples agree to live apart for a lengthy period of time in contemplation of divorce, a Separation Agreement is created and signed by both parties. The agreement settles the property, debt, custody, child support and spousal support issues between them. The agreement is submitted to the court for approval and generally becomes part of a divorce agreement when the time comes. With this agreement, the couple does away with the necessity of having a trial on the issues covered by the agreement.

Separating the Separation

Ordinarily, all issues must be resolved before a court will grant a divorce and issue a final decree. There are occasions, however, when one or both parties request that their marriage be terminated before the remaining issues get settled. Those issues include child custody, child support, alimony, visitation and division of property. In a bifurcated divorce the remaining issues get resolved in a second phase with a Settlement Agreement. This type of divorce is called a bifurcated divorce, or a divisible divorce. Reasons to request a bifurcated divorce can include:

  • one or both spouses wish to remarry, and don’t want to wait what could be one to three years before a contentious dissolution is resolved
  • the court has subject matter jurisdiction over the divorce (because the plaintiff lives in another state), but doesn’t have personal jurisdiction over the defendant
  • property issues are complex; valuation and disposition of jointly-owned businesses, real estate and complicated pension or retirement plans can take years to conclude
  • tax consideration – alimony (spousal support) is tax deductible once the couple is divorced. Should a divorce drag on for 2-3 years, that deductability is lost during the pendency of the divorce
  • an automatic stay has been is put on the divorce proceedings due to a bankruptcy action

Drawbacks to a bifurcated divorce
  • affect on children –  not resolving custody with a court-ordered parenting plan for a lengthy period exposes them to uncertainty, and exposing them to contentious exchanges can have a negative affect on children
  • costs are usually greater because of the need to have a second set of court appearances for property settlement and/or a parenting plan
  • once the divorce is bifurcated the couple loses the tax advantage of filing a joint return

States1 that have laws on the books that allow bifurcation if both parties agree:
  • Alaska – Alaska Statutes, Section 25.24cash
  • California – Family Code Section 2337
  • Kansas – Marriage of Wade, 20 Kan. App 2d 159, 884 P.2d 736 (1994)
  • North Carolina – Sharp v Sharp, 84 N.C. App 128, 351 S.E. 2d 799 (1987)
  • Pennsylvania – 23 Pa.C.S.A. Section 3323(c.1) and Section 3323(g)
  • Nevada – NRS 125.510, Ellett v Ellett 94 Nev. 34, 573 P.2d 1179 (1978)
  • Utah – Parker v Parker, 2000 UT App. 30, 996 P.2d 565 (2000)

1 Florida  will delay only the division of property element of the divorce. For couples with children, custody, a parenting plan and child support must be settled prior to issuing the final divorce decree.

States that generally Do Not approve bifurcated divorces:

Arizona, Michigan, Nebraska, New York and Texas

States that discourage bifurcations unless conditions are so hostile that the divorce won’t go forward without the marriage immediately terminated:

Wisconsin, Washington State

finger pointing rightYou should consult with an attorney in your State to determine if bifurcation is an option for you.

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