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Marriage Separation

separationBefore you get going in one direction or another you need to 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, do so.

Your first consideration may be the physical separation from your spouse. Living separately. A legal separation if your state recognizes that legal condition. We suggest you protect yourself (and maybe even your spouse) by making the separation 'legal'. Most states recognize a legal separation (Delaware, Florida, Georgia, Maryland, Mississippi, New Jersey, Pennsylvania, and Texas do not recognize separations, be they a legal separation or not).

Dealing with the process of divorce can be an overwhelming experience. Actions should be well thought out and measured. Being familiar with dispute resolution can be the difference between a divorce going smoothly and one that blows up in your face.

 

Your State's laws will define how the process of legally separating from your spouse should occur. It is important for you to know the rules before you separate. Some states use the physical separation date as the valuation date for marital assets. A separation date can serve as the date a particular mandatory waiting period began before a divorce can be filed or become final. Your state will direct you in how the date relates to your divorce. If you want to get your divorce started with the right forms, they can be obtained at Divorce Recovery Suite Legal Forms.

Reasons for legal separation include to keep the marital status intact until a spouse becomes eligible for Medicare, to permit a military marriage to reach the 10 year or 20 year marker in order to qualify for certain benefits, for one party to remain on the other party's health plan, or to meet the 10 year eligibility requirement for Social Security. In states where uninterrupted separation periods are required for a divorce to be granted, some spouses have been known to "cohabit" briefly in order to restart the clock in an effort to delay the inevitable so that a marriage will have endured past a certain age (such as with social security, pension or military requirements).

According to Social Security Administration rules, in order for a spouse to retain the right to receive retirement benefits based on the other's earning history, one must be married at least 10 years. Consider this if you are in the ninth year of your marriage. You can file for a marriage separation (in most states) and get beyond the 10 year hurdle and then decide what you want to do.

While it is somewhat uncommon, certain couples may be able to maintain their insurance and retirement-related benefits after a decree of legal separation has been filed. This depends solely on the benefit provider’s policies.

It is very important to not leave the marital home without speaking to a divorce attorney. Courts view the vacating of a home a "precedent", and in some states, consider it an abandonment of the home, the spouse or the children. Physical separation does become legal in states that don't recognize legal separation as a legal state of being, however. These states (see the list above) expect proof that a separation did take place, but differ on what physically makes you separated. Click on your state's link in the column to the left.

miseryPreparation prior to becoming separated

1. 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.

2. If you have your name on any leases (apartment, vehicle, etc.) inform them you are moving, and have your name removed if possible.

3. 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.

4. 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.

5. Copy all tax records (what you filed each year-form 1040. etc.)

6. 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.

7. 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.

8. 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:

a. clothing, shoes, hats and coats
b. pictures, photos, or family heirlooms
c. personal grooming, hygiene items
d. school and medical records
e. your personal computer, including any backups
f. any other electronic tool (external hard  drives, iPods, Blackberries, PDAs, etc.)
g. tools, outdoor equipment, recreation and sports gear, etc.


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Questions and Answers on Separating  


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?

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 separation can mean just living apart with no formal agreement. It depends on your state. Check with a family law attorney for specific answers. Top of Page

What do I need to do to get him to support us while we are in a marriage separation?

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. Top of Page

Are we legally separated once he's out and has his own place?

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. Top of Page

Does our physical separation provide me with any rights, such as not allowing him to come and go as he pleases?

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. Top of Page

Can my spouse legally move to another state?

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. Top of Page

My spouse claims we can be separated yet still live in the same house. I disagree. Who is right?

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. Top of Page

For a legal separation, do both parties have to sign for it to be legit?

Both spouses don't need to sign, but your spouse does need to be notified, or "served" paperwork that a petition has been filed. Top of Page

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?

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's confused? Check with the Clerk of the Court or some other comparable person in your county courthouse.  Top of Page  |  Top of QandA

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?

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. Top of Page  |  Top of QandA

How do we file our taxes as a legally separated couple?

You may file your taxes married filing jointly, or married filing separately. When you are divorced, your filing status changes (see the Divorce and Taxes section on this site). Top of Page  |  Top of QandA

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?

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. Top of Page  |  Top of QandA

We have filed a legal separation, but are talking about reconciling. Can the separation petition be withdrawn?

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. A form will be available for you to do that. Top of Page  |  Top of QandA

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?

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. Top of Page  |  Top of QandA

What about making changes to a separation agreement? We both admit to an error in it and want it corrected?

Yes, you can make changes to the agreement. It's called a modification. Simply file the modification and your done. Top of Page  |  Top of QandA

Is my spouse entitled to any of my money after we have signed a legal separation agreement?

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. Top of Page  |  Top of QandA

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?

If he dies while still be married (no divorce was ever completed), the answer is yes, you are entitled.  Top of Page  |  Top of QandA

Can a person who is legally separated have an intimate relationship with someone else?

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. Top of Page  |  Top of QandA

Can a person get engaged with another while legally separated?

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. Top of Page  |  Top of QandA

Can I get married while legally separated? Does the marital separation allow me to move on?

No, you may not, as that would constitute bigamy. You must wait for the divorce before re-marrying.   Top of Page  |  Top of QandA

I'm uncertain about getting a divorce. Is getting a separation something I should not do until I am certain?

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 feel tremendously rejected and react angrily. You'll need to weigh your options carefully.   Top of Page  |  Top of QandA

Can I legally force him out of the house and into a marital separation?

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. Top of Page  |  Top of QandA

Is there any particular time line connected to a legal separation?

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 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.   Top of Page  |  Top of QandA

I live in Florida and want a legal separation. I'm told I cannot get one here. What's up with that?

Florida is one of a handful of states that don't recognize a legal separation. You simply "create" your legal separation by physically separating.   Top of Page  |  Top of QandA

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?

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. In some states, a legal separation has a finite life; that is, if you don't act on the separation, it expires.   Top of Page  |  Top of QandA

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?

It appears you may have been told correctly. A legal separation resolves all issues between you and your spouse, except your marital status, and is done with a filing with the court. Typically the legal separation will include a Settlement Agreement, that details who gets what and when. You are still married though. A legal separation in those states that recognize them separates the two lives and details how assets, debt, property and how any children from the marriage will be co-parented.   Top of Page  |  Top of QandA

I live in Texas. I'm told a marital separation or marital settlement agreement is important? Why?

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.   Top of Page  |  Top of QandA

We're doing our own divorce. Does the marriage separation require that we sign and submit that separation agreement?

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.   Top of Page  |  Top of QandA

We've both agreed to a separation because we just can't agree on anything. I understand I can stay on his health insurance. Is that correct?

In most cases that would be correct. However, you (or he) must check with his insurance provider because some plans will not cover a spouse if you have legally separated. Don't do anything until you find out. 

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