All About Legal Separation
A legal separation is a court order where a married couple lives apart but remains legally married. It serves as an alternative to divorce, allowing couples to formally separate before making the decision to end their marriage. Legal separation helps couples divide their personal property, finances, and parenting responsibilities. Separating legally creates a court judgment for both parties that can be used later in the event of a divorce. This means that if you separate and later decide to get a divorce, your previous court orders regarding separation may expedite the process and save you time.
It’s important to note that divorce provides a final end to the marriage, with legal separation allowing the opportunity to reunite without any legal paperwork or waiting periods . Legal separation may be a good fit for couples who have health or religious reasons not to divorce, but want or need a formal separation due to children, meshing of property, or other circumstances. For example, some spouses don’t want to divorce because of insurance coverage. Others may wait to divorce until their kids are older so the transition will be easier on their children.
Since legal separation is generally the first step in the divorce process, it may help you determine if you want to continue with a divorce. People seek legal separation for a number of reasons, including: Getting a legal separation involves filing similar papers as one would for divorce, but with minimal differences. The division of assets and debts often are included in the separation process, along with spousal support. All of the same issues as in a divorce are involved in a legal separation.
Key Considerations to Make Before Filing for Separation
Each situation is different and there are many issues to discuss when deciding if a legal separation is appropriate. The following is a general outline of the factors to consider:
- Is a legal separation going to be your first step before a divorce? Building on the previous paragraph, a legal separation provides the most private and gradual step towards a divorce. The parties could even reconcile and proceed to a dismissal of the action. On the other hand, a legal separation can be viewed as a ‘trial marriage’ where the issues are worked out, and then a divorce is the most likely result.
- Financial considerations. Since a legal separation is much similar to a divorce, with the differences being that at the end of the action you either reconcile or separate, all of the financial issues in getting a divorce, such as division of community property; division of debts; spousal support; custody and visitation; and child support are still at play in a legal separation. An important consideration is whether it is worth the upfront cost of the attorney fees – are you planning to get a divorce or attempt to reconcile?
- Need for spousal support. Oftentimes, although there is chronic tension between spouses and the emotional and psychological issues have been considered (and minimized) a legal separation can be a way to carry the health insurance forward or to ensure that there is financial support in the future. However, unlike a legal separation, spousal support terminates upon a divorce. A legal separation will guarantee the spouse receiving support on a trial basis, a divorce will terminate the support. If the parties are reconciling, a legal separation with contractual spousal support may give the receiver a greater comfort level.
- Children. The same considerations that apply to spousal support also apply to children. Each case is different and the parties that discuss and attempt to maintain the status quo are entitled to greater latitude in negotiating terms that they can live with. Additionally, similar to spousal support, an order for a legal separation will not terminate when the parties reconcile, but a divorce will terminate the order.
How to Get Your Personal Finances Together
Once you have decided to pursue a legal separation or, alternatively, if you are the party that has received the Petition for a Legal Separation, your first step should be to prepare your personal financial picture. The goal is to develop a thorough understanding of your individual position so that your spouse does not take advantage of you.
The following comes from my experience of assisting clients who have completed the financial forms themselves:
- Review your bank and retirement account statements from the past two years;
- Make a list identifying what assets you and your spouse own such as the home, bank accounts, debts, etc.;
- Evaluate those assets and categorize them into non-marital and marital property;
- Compute your post-separation monthly expenses;
- Review your existing credit accounts and note the money available to you;
- Review your income from all sources; and
- Compare your monthly expenses with your income and assess the adequacy of the funds available to you.
Sometimes people are surprised at how much money they do need each month. When considering your monthly needs you should include the costs of maintaining separate residences, including rent, mortgage, utilities, transportation, and health care costs. A review of your credit accounts may also reveal gaps in your funds which can be addressed prior to separating.
Again, the more you know about your finances prior to separating the better. It is also helpful to develop a monthly budget and stick to it. A thorough understanding of your financial picture will control your anxiety and prevent your spouse from taking undue advantage of you.
How to Write a Legal Separation Agreement
Once you have selected the appropriate course of action to be separated and start to set up the terms of your separation, you will want to sign an enforceable agreement with your spouse. An agreement resolving your rights and obligations as parents, or as husband and wife, should be crafted while both parties’ have access to good legal advice. A separation agreement forms a contract between you and provides how you will live separate from one another. You, at the same time, should address and resolve any rights or claims of property which you have and to determine the amount and nature of any support that is appropriate.
Some of the most common issues you need to resolve in a separation agreement are:
• Who will live in the marital home after the parties are separated;
• How will the parties share parenting time and responsibility;
• What will happen to all of the parties joint accounts and debts;
• How will child support and maintenance/spousal support/alimony be calculated; and
• What will happen to your health insurance and how will your health benefits and life insurance be maintained.
It is important to make your agreement detailed enough to avoid future disputes. Each case is unique, and your separation agreement will be tailored to meet your needs. The agreement becomes a legally binding contract when signed by both parties. If you reach an agreement on all outstanding issues with your spouse, we will draft a written agreement submitted for a judge’s approval in court, we will finalize the divorce without anyone having to hire a lawyer. Otherwise we will have you both sign the agreement and begin the process of unilateral representation. The agreement will be submitted to the court without any additional forms/pleadings and will only take a few minutes to finalize. If everything is included in your agreement, you can move forward with your divorce without hiring a lawyer.
How to File for Legal Separation
Once you and your spouse have come to a resolution to separate, you will need to formally file for legal separation. Here’s how you can accomplish this without the assistance of a lawyer, making the experience as smooth and painless as possible.
The first thing you will want to determine is whether or not you actually need to file for legal separation, as some people are able to come to agreements with their spouse that make the separation legal in the eyes of the state without the filing process. However, if you will be in need of any property rights, spousal support or custody, you will indeed need to file.
To file for legal separation, you must fill out and file the proper legal forms . All of these forms can be found directly on the court’s website or at your local clerk’s office. It’s important that all of the forms are completely filled out and accurately completed depending on your unique situation, as any errors could result in additional time and legal fees.
As you file, you will also need to pay the required filing fees. These vary by county, though the county clerk will be able to provide you with the necessary documentation to show you how much you’ll need to pay.
Filing for legal separation is an important step toward obtaining your desired outcome. Make sure you get it right the first time to avoid additional stress and charges.
How to Navigate the Legal Process on Your Own
After you have lived apart for some time and agree to move forward with a divorce, you can handle the legal process on your own in various ways. It involves meeting certain deadlines while staying organized and communicating thoroughly so you do not miss a step. To help you, consider these tips: One way of going about the legal process without a lawyer is to go unrepresented. This means that you file all the necessary paperwork and go through court alone. Alternatively, you may choose limited assistance representation, where you can have a lawyer help you in certain areas of the case, while going on your own through others. Consider a hybrid approach with limited scope representation. In most states, at least one spouse must file a petition for divorce with the family law court. You may also file a response, answering the other spouse’s petition. Your documents are then served on the other party. Once this is done, there is a period during which you may negotiate various settlement points regarding assets, custody or alimony and child support, as well as time for conducting discovery and case preparation. If a settlement is not reached, your case will proceed to trial. Throughout the process, you should communicate with your spouse regarding the terms and conditions of each important area. Meetings should be documented, and all valuable property should be evaluated by experts. You will have to gather documentation about finances, assets and any children going through the divorce. All throughout your case, you must abide by the court’s deadlines. It is vital that you comply with these. Refer to your state’s family court website for advice on what to expect.
Common Pitfalls and How to Avoid Them
Despite the many benefits, problems can still arise, and being lawyer-free certainly doesn’t mean you are immune to them. Doing it yourself requires thorough preparation—avoid the mistakes that can complicate your separation.
By far, the most common issue in any divorce is the attitude of you and your spouse. After having a long-term relationship, you’re used to each other and things don’t always go smoothly. Be expected to have contrary viewpoints, and be ready with facts and research rather than arguments or insults. While you can’t predict how someone will react, your lawyer can help. Unfortunately, while it may be better on the finances, it can be more challenging because the lawyer is an outsider. You have to be realistic—when working on your own, try to keep open lines of communication with your spouse and remain focused on meeting your goals in the easiest ways possible.
The main concern when you go without a lawyer is, of course, that you’ll get caught unaware of some aspect of your rights and responsibilities. Chances are, you’ve already tried to find some self-help resources for your situation. Online resources may not really give you the answers you’re looking for—you may need to read through several different resources before you get something applicable to your specific case. This isn’t necessarily a problem because it’s important to understand your situation before going forward. Your attorney’s job is to help, so they will be able to answer any questions that you have. If you don’t end up hiring an attorney, you should definitely consult one. Make sure that all the property you and your spouse share is divided fairly. At this point, you might also want to consider how the estate will be handled. If you die, does your spouse gain control over any shared assets? You should also organize any bills that are jointly held-you should have access to these accounts, but it’s a good idea to keep a 50/50 split. It may even be in your best interest to establish a joint emergency fund-an emergency fund used to pay for unforeseen expenses.
When To Consult An Attorney
When it comes to seeking legal advice for a legal separation, there are still instances where counsel is necessary or beneficial. Even if your separation is amicable with no anticipated disputes, you may have other concerns regarding your spouse that need to be addressed.
Complex Cases
Complexities in your case will always warrant legal consultation. This most often involves handling large sums of money, significant child or asset custody challenges, and even businesses. Such complexities require more knowledge, experience and legal skill than a pre-packaged form divorce covers. These cases typically require a high degree of involvement and often translate into more work on the part of your attorney. Cost can rise, requiring a full understanding of your obligations as a client.
Possessing Power of Attorney (POA) or other fiduciary responsibilities
When you control substantial assets and funds, you have to prove to the Court that all your dealings are above board. Should you make any mistakes, you could be held accountable for them. Having a lawyer handle your legal separation reduces the chances of you making a mistake and serves to protect both your finances and your reputation.
Missing Any Significant Assets
Financially savvy spouses spend years building wealth in trust funds, offshore accounts, or in investments that most people have never heard of. When these assets are overlooked , it can become difficult to win a fair distribution or even to claim ownership. A lawyer knows how to find hidden assets and make them a part of the negotiations.
A Trustworthy Lawyer
Sometimes, a lawyer has no choice but to step in and perform the work that you intended to do. When this happens, it’s important for you to have already found an attorney you trust. If you know and trust your lawyer beforehand, you won’t have to go through the hassle of finding someone new, discovering pricing, and having to start all over again. This is why you should hire a lawyer as soon as you decide to separate. Having this kind of protection in place ahead of time can prevent you from ever becoming involved in a legal battle.
Is It Time to Review Your Existing Separation Agreement?
Even if you didn’t use a lawyer to draft the separation agreement, it is possible to revisit your existing separation agreement if you have concerns. There are many reasons for doing this: changes in circumstances, discovery of hidden assets, moving to another state, etc. When you approach your existing agreement with an experienced lawyer, they can tell you what, if anything, needs to change. If you want a thorough analysis, it’s essential to provide your legal advisor with a copy of the original agreement.
Only you can make the determination as to whether you need a lawyer to handle your legal separation. Taking your time to think it through, to consider the potential impact on your most valuable relationships, is the only way to make the best decision for yourself emotionally and legally.