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| Q. |
I hear terms like separation, legal separation, legally separated, marital separation, and I don't know what to make of each one. Is it just semantics? What do I need to know? |
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| A. |
Difficult question to answer. Depends on what state you are in? We can tell you that legal separation almost always requires a separation agreement signed and submitted to the court. A marital separation can mean just living apart with no formal agreement. It depends on your state. Check with a family law attorney for specific answers. |
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| Q. |
What do I need to do to get him to support us while we are in a marital separation? |
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| A. |
If
you can afford one, hire an attorney and have
that person file a petition for child support
and spousal support. If you can't afford an attorney,
go to the courthouse and have someone show you
how to file a petition yourself. It's not difficult. |
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| Q. |
Are we legally separated once he's out and has his own place? |
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| A. |
That depends on what state you live in. In most states however, you must complete the process of legal separation. Check the State Resources page on this site (you can also reach it by clicking on your state above), locate your state and read what is needed for a legal separation. You may need to file separation paperwork to protect your interests. |
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| Q. |
Does
our physical separation provide me with any rights, such as not allowing him to come and go as he pleases? |
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That's going to depend on your state and it's marital separation laws. Most states require a paperwork process, and once completed, prevent him from the same access he had when you were married. There's too much to explain here. An attorney can explain how the physical separation impacts asset values and ones rights and claims to them. |
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| Q. |
Can my spouse legally move to another state? |
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| A. |
The answer to that is yes, but we suspect you ask that in relation to children? In the absence of a restraining order, separation agreement or divorce decree, your spouse could move to another state without your permission and take the children. If you are the custodial parent, your spouse is making visitation more difficult and expensive. A restraining order by a judge can keep a spouse and parent from moving out of state until it gets sorted out. Check state law that pertains to your situation. |
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| Q. |
My spouse claims we can be separated yet still live in the same house. I disagree. Who is right? |
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Most states require that in order to be separated (in legal terms), you must fulfill the definition of "live separate and apart". Since no policing occurs, it could lead one to several interpretations. Check your state laws on whether you need to be living in separate dwellings, or not. |
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| Q. |
For a legal separation, do both parties have to sign for it to be legit? |
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Both spouses don't need to sign, but your spouse does need to be notified, or "served" paperwork that a petition has been filed. |
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| Q. |
My wife told me she filed for a legal separation over a month ago, but I've not received any notice, or been served. She says I'm in contempt. Should I believe her? |
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To be on the safe side, ask her where she filed and get with them about your wife's allegation. Get as much information as she will give. Generally speaking, one can't have a court proceeding occur without due notice. Maybe she
confused? Check with the Clerk of the Court or some other comparable person in your county courthouse. |
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| Q. |
We just discovered that the legal separation paperwork we filed through my lawyer was never received by the court. The attorney has died. Now what do we do? |
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| A. |
You're in a real pickle. You should retain another divorce attorney and get guidance. There are too many variables connected to the situation with the deceased attorney. It sounds like you have an justifiable action against him (his
estate), but the more pressing issue is your legal separation. Get some legal advice. |
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| Q. |
How
do we file our taxes as a legally separated couple? |
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You may file your taxes married filing jointly, or married filing separately. When you are divorced, your filing status changes (see divorce-taxes section on this site). |
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| Q. |
This is embarrassing, but my husband and I have been legally separated for over ten years. We just never got it done. He is gravely ill. What happens to the assets that are still in joint name? Or his other assets? |
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This could get messy if he has a significant other. Legally you are still his wife, and entitled to your spousal share of marital assets. There's some question whether assets he may have accumulated after you separated are still marital. You'll need a good attorney for this. In the end, if he dies without a will (intestate) your state has guidelines on how his estate gets distributed. You and your children will be the heirs. |
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| Q. |
We have filed a legal separation, but are talking about reconciling. Can the separation petition be withdrawn? |
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Yes, it can be withdrawn if it hasn't been granted yet. If it has been granted, you'll both need to contact the court to withdraw it. |
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| Q. |
My husband and I can't afford separate places, but we want a legal separation. We have to be living separately for a year to divorce. How do we do this legal separation thing? |
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That is going to depend of on state and its divorce or annulment laws. Some states permit the parties to live in the same house as long as they live separate lives and don't share a bed or have sex. Other states prohibit that and insist on separate quarters for a legal separation to be valid. Check your state. |
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| Q. |
What about making changes to a separation agreement? We both admit to an error in it and want it corrected? |
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Yes, you can make changes to the agreement. It's called a modification. Simply file the modification and your done. |
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| Q. |
Is my spouse entitled to any of my money after we have signed a legal separation agreement? |
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That's a difficult question to answer because there are so many variables and we don't know what state you are in. In general though, if you filed the separation agreement with the court and its been approved, you attained a legal separation and your assets must be divided according to that agreement. In some cases spouses have won lotteries, and on one state they must split it, and in another they do not. Get some legal advice just in case. |
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| Q. |
I asked a question earlier because my wayward husband is gravely ill. Am I entitled to any social security benefits connected to my marriage with him, or will his current girlfriend be entitled? |
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If he
dies while still be married (no divorce was ever completed), the answer is yes, you are entitled. |
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| Q. |
Can a person who is legally separated have an intimate relationship with someone else? |
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Obviously you can, but it would fall under the category of adultery, which depending on the state in which you reside, could negatively impact any divorce petition. |
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| Q. |
Can a person get engaged with another while legally separated? |
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Yes, you can get engaged. Engagement isn't a legal "condition". You may want to run this by an attorney if your state laws and separation agreement requires no "relations" during
the separation, which could void the legal separation and re-start the clock. |
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| Q. |
Can a person get married while legally separated? Does the marital separation allow me to move on? |
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No, you may not, as that would constitute bigamy. You must wait for the divorce before re-marrying. |
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| Q. |
I'm uncertain about getting a divorce. Is getting a separation something I should not do until I am certain? |
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One concern should be legal (financial), the other emotional. Speak with an attorney in your state about what consequences or ramifications might come from filing for a marital separation so you fully understand what that entails. The other concern might be how your spouse might react to a filing. Some spouses get tremendously rejected and react angrily. You'll need to weigh your options carefully. |
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| Q. |
Can I legally force him out of the house and into a marital separation? |
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If you want him to leave, you're best bet would be to discuss this and ask him to go. Check your divorce laws to determine what you need to do for a marital separation. If he refuses to go, and there has been any violence, you might be able to get a restraining
order (order of protection) and have him removed. This is pretty extreme and traumatic, and you'll want an attorney's help requesting the court issue those orders. As far as forcing a marital separation, as long as he's served (aware) that its ongoing, its kosher. |
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| Q. |
Is there any particular timeline connected to a legal separation? |
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That will depend on your state laws. Typically though, there is usually some form of settlement meeting scheduled. Some may call it a case management conference. It will be |
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there that you'll disclose the details of how you want the separation handled. You can ask at that time what else is necessary, or what you can expect. |
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| Q. |
I live in Florida and want a legal separation. I'm told I cannot get one here. What's up with that? |
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Florida is one of a handful of states that don't recognize a legal separation. You simply "create" your legal separation by physically separating. |
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| Q. |
I'm considering a legal separation. My spouse and I have discussed this, and he insists that if we make it legal, get the legal separation on our way to divorce, there's no turning back, and we must get divorced. Is this true? |
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Getting a legal separation in any state does not force you to continue on to divorce. In other words, divorce is not mandatory and not the only option. If you and your spouse want to end your legal separation status, reconcile and do so. You should, however,
notify the court of the changed status of the legal separation. |
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| Q. |
I'm confused. What is the difference between a legal separation and just a separation? I'm told the legal separation protects me? How so? |
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It appears you may have been told correctly. A legal separation resolves all issues between you and your spouse, except your marital status. You are still married. A legal separation in those states that recognizes them that they separate the two lives and detail how each is to conduct themselves with assets split, or children visiting, or any other issue. Your life is now fully your's. |
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| Q. |
I live in Texas. I'm told a marital separation or marital settlement agreement important? Why? |
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If you have no marital property, no joint debts, and no children, you probably don't need a marital separation or an agreement to get a no-fault divorce. However, a marital separation and an agreement in writing leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings. |
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| Q. |
We're doing our own divorce. Does the marital separation require that we sign and submit that separation agreement? |
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It will depend on your state, but generally you will need to file it with the court. Be especially careful about whether you request it be part of the divorce decree or a stand-alone document, as the differences can be significant. It's well worth the cost to get some legal divorce advice. Marital separation? Legal separation? What the heck! |
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