Define Legal Separation

Marcelina Hardy, MSEd, BCC
Is legal separation for you and your spouse?

Before leaving your spouse, it's important to know how to define legal separation. Knowing this will help you if you decide to divorce after the waiting period your state may require.

How to Define Legal Separation

To define legal separation simply - it's a written agreement made by the Court that states you and your spouse no longer wish to live together. Your spouse must sleep at another residence as part of this agreement.

Conditions of a Legal Separation

Legal separation from your spouse means you are still married but you will have the rights and obligations of being divorced.

A legal separation agreement may include the following stipulations:

  • Division of assets, property, and debt
  • Child custody
  • Child visitation
  • Child support
  • Spousal support

These stipulations may be carried forward to form your divorce settlement if you decide to dissolve the marriage officially.

Reasons for Stipulations

You may wonder why you need to have a written agreement with these conditions when you aren't divorced yet. Many couples find this to be relief because they fear that their spouse may incur debt or sell marital property, which would cause financial strife for the other spouse.

The Difference Between Desertion and Legal Separation

Desertion is when a spouse leaves with no intention of returning. This is not the same as legal separation and the Court will not recognize this time apart when a couple wants a divorce. Many states require a couple to be legally separated for a period of time before a divorce can be granted. The only time a Court will recognize desertion is in the event of spousal or child abuse.

When Your Spouse Doesn't Want to Separate

If your spouse doesn't want to legally separate, you can go to the Court and petition for it. Just as in divorce, you will have to tell the Court the reasons for the separation. Many times, couples don't agree to separate at first, but after serious discussion about the need for it, couples usually come to an agreement.

The Difference Between Trial and Legal Separation

If you and your spouse decide to live separately but don't change anything about your marriage, you are in a trial separation. You and your spouse make the rules during your time apart. This can have its benefits as well as its disadvantages. You have the flexibility of changing provisions of your time apart without going through Court proceedings but you don't have the protection you would have in a legal written agreement. This trial period is best for couples who just need a break from one another and don't believe they will divorce. This is because the Court does not recognize this marital situation as part of the waiting period before being able to get a divorce. If you do decide to get a divorce, you will then have to go through the process of legal separation.

Temporary Support Orders for No Legal Separation States

Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not recognize legal separation. If you live in one of these states and need spousal support, you can go to the Court for a temporary support order.

Deciding to Legally Separate

When deciding if this is the route to take, you will need to consider whether you and your spouse are leaning towards divorce. While deciding to legally separate doesn't mean you will definitely end up dissolving your marriage, it is a stepping stone in that direction. If you need time to work out your differences and the best way to do that is to temporarily live apart, consider trial separation until you believe divorce is imminent.

Define Legal Separation