Filing for Legal Separation

Audrey M. Jones
gavel

Filing for legal separation is an option for couples who are legally required to formally separate before being granted a divorce or who want to engage in a trial separation before committing to a divorce. A legal separation is recognized by the court in all states except Texas, Georgia, Mississippi, Pennsylvania, Florida or Delaware.

Steps for Filing for Legal Separation

Although each state's separation and divorce laws differ, there are X basic steps to filing for separation. These steps may differ depending on the circumstances of the marriage and separation. It is not necessary to hire a lawyer to file for separation, but doing so may assist in resolving basic issues and filing the paperwork.

First Step: Determining Major Issues

When filing for separation, couples are often required to resolve several issues prior to filing. These issues may include:

  • Child custody and visitation arrangements
  • Whether support payments will be made to one spouse during the separation and, if so, the amount of those payments
  • Which spouse will pay the debts or other payment obligations incurred during the marriage
  • The residences of both spouses

If the spouses are unable to agree on these issues, the court decides them when issuing its decree. Usually, a hearing will be held in which both spouses can make arguments about the issues to the court.

Second Step: Drawing up a Petition

Some courts provide preprinted separation forms for spouses to use when filing for legal separation. It is usually up to the spouses whether they want to use these forms or if they want to create their own document that contains the same information. Usually, only one spouse needs to file the document. This form should be titled "Petition for Legal Separation" or something similar and should include:

  • The Petitioner's name and address
  • The Respondent's name and address
  • The names and ages of the couple's children and a statement of whether the wife is currently pregnant
  • The date and place where the couple was married
  • The date of separation
  • A statement of the court's jurisdiction over the matter
  • A request for a temporary division of marital property or a statement that the division will be made at a different time
  • A statement of how debts will be handled during the separation

Only one spouse must create, sign and file the petition. A jointly filed petition may expedite the court's approval.

Third Step: Filing the Petition

Once completed, the Petition for Legal Separation must be filed with the court having jurisdiction over the issue. Additionally, a copy of the Petition must be served upon the non-filing spouse. Usually, the court assists in serving the Petition, but sometimes mailing it to the spouse is sufficient.

Fourth Step: Responding to the Petition

Upon its receipt, a spouse can:

  • File a response agreeing to the terms the petitioner has requested
  • File a response and counter-petition outlining the areas where the respondent does not agree
  • File a response indicating they want a divorce instead of a legal separation
  • Do nothing

If the respondent does not respond, the court considers them to have agreed to the terms of the Petition. The judge will then issue order regarding the items listed in the petition.

Your Legal Separation

If you are currently filing or considering filing for a legal separation, consider consulting an attorney. A lawyer can advise you about what your Petition should contain and may even handle filing the Petition on your behalf.

Filing for Legal Separation