Filing for Legal Separation

Issues to be Addressed When Filing for Legal Separation

When filing for legal separation, the couple will still need to work out the same issues as if they were deciding to end their marriage. This includes:

• Custody and visitation
• Alimony
• Division of marital property
• Payment of debts incurred during the marriage

Each spouse should have his or her own attorney. Some states have a residency requirement that must be fulfilled before the Petition for Legal Separation can be filed.

Petition for Legal Separation

This is the document used by one spouse (the Petitioner) to start the process of separating the couple's personal and financial affairs. It includes the following information:

• The Petitioner's name and address
• The Respondent's name and address
• The names and ages of the couple's children
• The date and place where the couple were married
• The date of separation

The Petitioner will formally request that the Court grant the couple a legal separation. In addition, the Petitioner must indicate why that particular Court has jurisdiction over this matter.

An equitable division of the couple's marital property will be requested by the Petitioner. The Petitioner has the option of asking for the Court to divide the property immediately or at a later time. He or she also sets out how they would like the marital property divided by the Court.

The couple's debts are dealt with in the same manner. They can be dealt with immediately and divided between the parties or put off until a later time.

Pregnancy and Legal Separation

Whether the wife is pregnant at the time the legal separation forms are filed is also taken into consideration. The Court needs to be advised of this fact and whether the unborn child was fathered by the husband or by another man.

Legal Separation Papers Must be Served

Once the legal separation documents have been completed and filed, they need to be served on the other party (the Respondent). The Respondent is given a specific amount of time in which to respond to the Petition. The Respondent can choose to:

• 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 nothing, they will be noted in default. A judge can then make an order regarding all the items listed in the Petition without any input from the Respondent at all.

Negotiating a Legal Separation

If both parties agree to what the Petitioner has requested in the Petition for Legal Separation, they both need to sign the document and forward it to the Court House for a judge to approve it. If not, they have an opportunity to work out the details through their lawyers or with the help of a mediator.

At the point where it becomes apparent that the two parties are not able to agree about the terms of their legal separation, they will need to request a trial date for a judge to make a ruling on the outstanding matters.

Legal Separation and Your State

Depending on where you live, filing for legal separation may not be an option for you, since it is not available in the following states:

• Texas
• Georgia
• Mississippi
• Pennsylvania
• Florida
• Delaware

In states where it is recognized, this can be a viable option for those couples who are not ready to end their marriage.