Separation Advice
Answers From The Expert
If you need separation advice, the following information can help. Many people wonder why they should go through the hassle of getting a legal separation instead of just agreeing to live apart. One of the main reasons for a legal separation is to protect your interests until you either divorce or get back together. In states that require a period of separation before granting an uncontested divorce, a legal separation can give clarity to how everything will be handled in the meantime.
A separation agreement can outline where you and the children will live, address temporary support and visitation schedules, and determine how the assets will be split, bills paid, and mail handled. A legal separation can also help protect you from being held responsible for your spouse's debt, liabilities, and taxes after the date of separation.
Unfortunately, not all states recognize a legal separation. These states include Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas. But, you can file for temporary orders when you file for divorce as a way to protect yourself until the divorce is finalized. The following information may help answer other questions that you may have about legally separating.
Are we legally separated since we've been apart so long?
Kathy's Question: If my husband and I have been apart for 10 years without filing any kind of papers, are we considered legally separated?
Brette's Answer: No. A legal separation only occurs when a court issues a judgment of separation.
Are we legally separated if we're going through a divorce?
Mallory's Question: If I am currently getting a divorce, am I legally separated?
Brette's Answer: No. A legal separation is a different process.
Are we considered divorced after being separated for so long?
Laura's Question: My husband and I have been separated for 19 years. I have wanted to get a divorce but have not had the means to do it. A friend thinks since we were separated for so long, we were already considered divorced. Is this true?
Brette's Answer: You're not divorced until a court decides you're divorced. For this to happen, you will need to file for a divorce. Can we still get a divorce if we've been separated for 10 years?
Cheryl's Question: I have been separated for 10 years, and we own a house together. Can I still get a divorce?
Brette's Answer: Yes you can get a divorce. You should talk to an attorney to discuss the grounds available to you. » Return to questions
Is a legal separation wise if you're uncertain about divorce?
Diane's Question: Is a legal separation wise if your still working on the marriage and living together, but can see its probably not going to work? I just want to protect myself from any possible stupid moves that my husband might make.
Brette's Answer: It would be a good idea for you to talk to an attorney so that you can understand the legal ramifications of a legal separation in your state, and the impact that may have on your divorce. In some instances, doing a legal separation first when you aren't certain can allow you to work out all the financial issues, so that when and if you are ready to divorce, there is not much left to decide. On the other hand, it may add expense to your case. You may wish to see a marriage counselor to help you decide if you wish to save your marriage.
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Can we rescind a legal separation and just file for a divorce?
Gabbie's Question: Can you rescind a legal separation and opt to file for a divorce? I'm under the notion that in NY state you have to wait for a year before you can then file for a divorce. What if both parties decide they want to file for a divorce before the year is up?
Brette's Answer: You can convert to divorce using other grounds. If the papers have been filed with the court you will need to follow your state's process for amending them. It should not be costly.
How much does it cost to get a legal separation?
Karin's Question: How much does it cost to get a legal separation, rather than just get divorced?
Brette's Answer: There is no simple answer to this question. Generally, people seeking a legal separation are in agreement, so the costs you face are about the same as an uncontested divorce, maybe a little less. However, if you get a legal separation and later want a divorce, you then have added costs, whereas if you just went for a divorce right away, you would have only one set of costs. » Return to questions
What rights do I have with a legal separation
Janice's Question: My husband decided about 9 months ago that he no longer wanted the responsibility of our home, so he decided to move. I was given 2 weeks to find somewhere to live because he moved in with his aunt. He provides no support for me and I am barely making ends meet. What rights do I have in a legal separation agreement?
Brette's Answer: You have the right to a property settlement of the assets and debts of the marriage, as well a right to spousal support, depending on your circumstances. He had no right to tell you that you had to move. I would suggest you talk to an attorney as soon as possible so that you can understand your state's laws and discuss what the best step is for you to take next. » Return to questions
What if my state doesn't recognize legal separation
Lori's Question: Since a legal separation is not recognized in Texas what other options do I have to keep myself insured through my husband and make him pay support for me (apartment., bills, food, etc.) during the time of separation if it comes to that?
Brette's Answer: If you're still married, you can certainly go to court and seek spousal support, which can include cash payments, as well as him paying household bills and providing health insurance for you. You can find out more about this by reviewing the information about temporary orders on the Texas Divorce Laws page. » Return to questions
Can a legal separation be withdrawn if a couple reconciles?
Christine's Question: If a couple files for a legal separation, but they decided to reconcile, can it be voided?
Brette's Answer: Yes if you have filed for a separation, but it has not been granted yet, you simply withdraw the papers and the case is over. » Return to questions
Can a legal separation be modified?
Celeste's Question: My ex and have a legal separation and agreed to not touch each others retirements. At the time, we thought our home would be sold and all debts paid off. It still has not sold and we are on the verge of filing bankruptcy. We have agreed that he will give me money out of his retirement to help support our children since I'm not currently receiving child support. If we don't do this we will lose everything. Since we are both mutually agreeing to this can, we get the legal separation modified?
Brette's Answer: Most definitely. Just create a modification to the agreement and file it.
Topic: Can I make him move out during the separation?
Katherine's Question: Our relationship has become intolerable and I have asked my husband for a trial separation to give us time to think about our lives together and apart. Can I force him to move out for a trial separation?
Brette's Answer: You would need to go to court to obtain sole occupancy of the home. You should talk to an attorney, but you and your husband might want to see a mediator to see if you can work out a trial separation on your own. Good luck. » Return to questions
Topic: Can we still live in the same house if we're separated?
Mary's Question: My husband and I want to get a legal separation but, neither one of us can afford to move. We have a two story house and he could move to the down stairs. Would this be legal? Brette's Answer: It depends on your state definition. Usually you must agree to "live separate and apart". However, there is really no one who is going to police that. Talk to an attorney so that you can understand your state laws and go from there.
Can he kick me out of our apartment when we separate?
Jodi-lynn's Question: My fiance and I are splitting up and we have a two year old son together. He is saying that he is kicking me out of our shared apartment without my son. Can he do that? and, what can I do to stop this?
Brette's Answer: It depends whose name is on the lease. If it is joint, you each have an equal right to be there. If it is in his name, then he has the authority to tell you to leave. If it is in your name, he has no right to be there. I highly recommend you go to family court and get custody and child support established. Good luck. » Return to questions
Can our separation agreement say that I get the house?
Kara's Question: My husband and I have been married 13 years. We are going to get legally separated. He does not want our house, but I do. Is it possible to include this in our legal agreement? Can I get him removed from the deed and keep my house?
Brette's Answer: If you both agree that you should have the house, that can be included in your separation papers. The deed can be transferred to your name alone. Good luck.
Do I need a legal separation to move out with the kids?
Arin's Question: Do you have to have a legal separation agreement on file in order to move out with the kids?
Brette's Answer: No. Many people physically separate without any court involvement. If you want something official, file for an order of custody with family court. » Return to questions
Can my spouse legally move to another state?
Renee's Question: If my spouse has moved to another state with another woman, but has not changed his address, is this legal? What about our children; should I proceed with temporary custody? Brette's Answer: He can move wherever he wants. You can seek temporary custody. Good luck.
Topic: Do both spouses have to sign a separation agreement?
Melissa's Question: To be legally separated do BOTH parties have to sign the papers? Or can just one of us sign them?
Brette's Answer: Both parties have to have notice of the proceeding. If one does not answer or appear, it can proceed without him or her. » Return to questions
Topic: How is notification sent for a legal separation?
Darla's Question: My husband moved out of state last winter. He emailed me and said that he sent in the paper work for legal separation. It's been two weeks, and I still have not received any notification. How long does the process usually take and how will I be notified?
Brette's Answer: If your husband is seeking a separation agreement, the papers need to come to you, but it would depend on how long it took his attorney to complete them. If he filed for a separation action in court, you would need to be legally served. Ask him what he did and which court and call the court or the attorney and get some information. Good luck. » Return to questions
Topic: How can I find out if separation papers were filed?
Sandy's Question: I was told that my husband filed for legal separation. I was never served papers for this or knew anything about it. My husband died unexpectedly a couple of weeks ago. How do I find out? Who do I contact?
Brette's Answer: If he passed away before an order was entered, it shouldn't matter where or if papers were filed. If you still want this information, you should call the clerk's office for the court in his county that handles divorce and separation. » Return to questions
Is the agreement binding if the papers were signed but not filed?
Amanda's Question: I just found out that the court never received the separation agreement that was supposed to have been entered 3 years ago. Even though both lawyers signed it, it was never given to the courts. Is it still a binding separation? He has not been paying the support ordered because of it.
Brette's Answer: The attorney handling this should have noticed that a court order was never put into effect. Smells like malpractice to me. You need to talk to an attorney to find out what your state law permits now.
Topic: What is the timeline for a legal separation?
Tasha's Question: I am unsure of what the time-line is for getting a legal separation. I have filed and he has been served. I was told that he has 30 days to respond. A "case management conference" has been scheduled three months from now. Can we avoid going to that conference if we agree on the terms before-hand, or do we have to go before the Judge to grant settlements? I was told that it's best to avoid going to court. What is the difference between a full hearing and the case management conference? Can both or just one be avoided?
Brette's Answer: The timeline for a legal separation varies by state. A case management conference is a settlement meeting. You can submit a written stipulation beforehand, or go to that meeting and put the terms on the record then if you are able to agree. Another option is to see a mediator who can help you work out a settlement and put it in writing so it can be submitted to the court. Good luck. » Return to questions
How do I enforce a separation agreement?
Marie's Question: If I have a separation agreement outlining visitation, am I able to enforce it using police if necessary? The agreement was done through lawyers and a mediator.
Brette's Answer: If the agreement was approved by the court and entered as an order, then yes. Otherwise, no. In general, it is best to go back to court to resolve any problems rather than to get police involved in a family matter. » Return to questions
Are marital assets split after separation deemed separate property?
Leslie's Question: My husband and I are separated. We are splitting our liquid assets. After we split the liquid assets into our own separate accounts, is that money now considered separate property? We plan to mediate, and we are in California.
Brette's Answer: No, not until it is decreed that way by the court. (Note: Property ownership is determined by when the property was "acquired". In California, community property can be transmuted to separate property via a written declaration. [Ca Fam § 850(a),(b) & (c);]. You should consult with your attorney about the implications of such a transfer.) Do I need a quit claim deed to have the property transferred to me?
Leslie's Question: I recently became legally separated, and was awarded 2 properties in the separation agreement. Do I need to file a quit claim deed to have the property transferred to me or is the legal separation paperwork sufficient? Brette's Answer: You need to have the deed changed. Good luck.
Is he entitled to my money after we sign a separation agreement?
Angie's Question: After signing a separation paper, can he legally try to get any of my money before we file for divorce?
Brette's Answer: If you sign a separation agreement and file it with the court and the court approves it, your assets must be divided according to that agreement. If he is in violation, you can go to court and enforce the order.
Are assets obtained after a legal separation marital property?
Question: Once a legal separation has been granted and judgments set, are assets attained after that still considered marital property?
Brette's Answer: Generally no. » Return to questions
Is he entitled to part of the business I started after we separated?
Deneen's Question: I recently started a new business. It was started after the date on our legal separation paperwork. My husband thinks that he is still entitled to half ownership in my business. Is this correct?? I thought any new income after the date of separation was just mine??
Brette's Answer: It depends on what assets you used to start the business. If you used marital assets, those could be deducted from your share of the pot once the division is made. Talk with your attorney about this to get details.
Topic: Insurance and legal separation
Julie's Question: Can you keep health insurance with a legal separation?
Brette's Answer: You are always entitled to continue health insurance through your spouse under COBRA. Some employers and insurers will stop coverage as of the date of separation, not the date of divorce. You should consult an attorney who can advise you how to handle the situation and what your options are. » Return to questions
Topic: Life insurance and legal separation
Kim's Question: My husband and I are getting a legal separation, and he would prefer to give up all the life insurance policies. Is there anyway I can prevent him from disposing of the policies, should he actually decide to do so?
Brette's Answer: Life insurance can be part of the property disposition as ordered by the court and a spouse can be ordered to maintain life insurance as part of a spousal support order or a child support order. » Return to questions
Topic: Support during a separation
Nina's Question: My husband and I have been separated for 6 months, and he has not given me any money towards my mortgage, bills or child support. How can I get money from him legally if I can't afford a lawyer?
Brette's Answer: Go to Family Court and file a petition for child support and spousal support. You can also ask for help with the children's medical and educational expenses. You don't need an attorney.
Mortgage payments during separation
Christa's Question: My husband and I moved in with my mother while she had cancer. After she passed away, my sister and I inherited the house. The mortgage is still in my mother's name, but since my husband and I live here we make the payments. If we get a legal separation, will my husband be required to continue making the house payments since it isn't in our name?
Brette's Answer: He can be ordered to make support payments to you. It's unlikely a court would order him to make mortgage payments on a house he doesn't own.
Topic: Filing taxes when legally separated
Kimberly's Question: My husband, and I are going through a legal separation.. I was wondering, are we able to still file income taxes together?
Brette's Answer: You can still file jointly, or you can file married filing separately. » Return to questions
Topic: Will I still be entitled to social security benefits?
Sandra's Question: I am legally separated as of a month ago. If my spouse or myself should die, is the other still qualified to receive social security benefits?
Brette's Answer: Legally separated is still legally married. The answer is yes.
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How is everything divided if he dies while we are separated?
Jacqueline's Question: My husband and I have been legally separated for about 20 years - neither of us wanted to remarry so there was no need for a divorce. I recently found that he does not believe in making a will. If he should die intestate, what would happen to his estate? We both are financially stable so neither of us need or want anything from the other, but all of our children could use some help.
Brette's Answer: If he dies intestate, his estate is distributed according to your state intestacy laws. This divides the estate among the spouse and children. You can Google it or check Findlaw.com for your state's actual percentages.
Can my Dad stop his wife from getting his estate when he dies?
Rene's Question: My father has been separated for more than eight years to his second wife. They are still married though. She left him high and dry and now is waiting for him to die to claim his property. How can he prevent this?
Brette's Answer: He can write her out of his will, however your state may have a law that gives a spouse a certain percent of the estate no matter what.
Should I get a legal separation while he's in a mental facility?
Ness' Question: I have been married about a year and my husband recently had a nervous breakdown for which I had to commit him to a psychiatric facility. I have decided, and he has agreed, that until he deals with his issues and gets better that a legal separation is the best thing for us. Does a legal separation mean that I can no longer make medical decisions on his behalf should he become incapacitated for any reason such as his mental illness or say a car accident? We both have made it clear and written what our wishes are should something like that happen, but will I still be the one that can legally make those decisions if we are living apart and legally separated?
Brette's Answer: Why don't you wait until he comes out to do the separation? He may not even be considered competent at this point to sign legal papers. If you can't wait, he can execute a health care proxy or health care power of attorney giving you authority to make medical decisions for him. His facility may even be able to provide you with the form. » Return to questions
Topic: Does he still have financial obligations if he moves out?
Dawn's Question: My husband moved out, and we are currently going through the motions for separation and divorce. He does not want the house and I have applied to have the the mortgage in my name. We both have payroll deductions to pay for a line of credit, the mortgage, and house insurance. He claims that I owe him for the payroll deduction because he no longer lives in the house. Do I owe him the money? Does the fact that he has moved out mean that he no longer has any financial obligations?
Brette's Answer: You should discuss this with your attorney. When a couple is in the process of divorcing it is almost impossible to suddenly separate out your finances. Instead it is a process that takes time. When your property settlement is finalized, it will be done in a way that takes into account all payments made by both of you during the separation. » Return to questions
Is it okay to date if you're legally separated?
Jamie's Question: If you are separated, can you still have another intimate relationship with someone else, or will that still be an affair?
Brette's Answer: When you are separated you are still legally married to your spouse, so technically having a sexual relationship with someone else is considered adultery. As to whether it is ok to date once you have physically separated, that is something you need to discuss with your attorney. It depends on the type of case and what exactly is happening. Practically speaking, most people do feel free to date once they have physically separated. You have to do what is right for you given your circumstances and what fits your belief system. Good luck. » Return to questions
Topic: Can a person get engaged during a legal separation?
Kendall's Question: Can a woman become engaged to a man who is legally separated and is waiting the year required before the divorce can be obtained?
Brette's Answer: An engagement has no legal meaning, so yes, someone who is still legally married can get engaged. State law varies about turning separation into divorce, so talk to an attorney to get details on your specific state. However, if you don't want to wait the year, you can use another grounds for the divorce and go ahead with it right away.
Can you remarry if you are legally separated?
Beatrice's Question: I am engaged to a man who is legally separated. Can we get married now, or do we have to wait for the divorce?
Brette's Answer: A person who is legally separated is still legally married. You cannot marry until he is divorced. » Return to questions
How will it affect my divorce if I cohabitate?
Stephanie's Question: My husband and I have been separated for about 9 months now. I want to move in with someone but am unsure of the effects that it will have when I do eventually file. We have a child together.
Brette's Answer: Moving in with another person is something most attorneys advise their clients to hold off on if they can, but each person has to do what is right in his or her own situation. You'll still be entitled to child support if you move in with someone. Your living situation does have an impact on custody, so keep that in mind. Good luck. » Return to questions
If I'm legally separated, can I lose custody if I move in with someone?
Pat's Question: I have met someone else and would like to legally separate from my husband. I have two children, and am afraid that I will lose them if he finds out about my new relationship. Can I continue my new relationship without losing my children if I'm legally separated?
Brette's Answer: You should consult an attorney in your state so you can fully understand the ramifications. Generally, because you are in a new relationship, it should not affect your chances for custody, as long as the relationship does not adversely affect the children. For example, if a new partner is abusive, does not treat the children well, or if the new relationship causes the parent to be less attentive to the children, these would be ways in which it could adversely affect the children. » Return to questions
Can I use my maiden name while I'm separated?
Karen's Question: Can a legally married woman, who is separated from her husband, start using her maiden name even though they are not divorced?
Brette's Answer: You can, but if you want to legally get it changed on things such as your driver's license you would need to legally change your name, which involves a court procedure. Good luck. » Return to questions
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Related Articles:
Separation and Moving Out
What is a Legal Separation
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Brette Sember is a former family and matrimonial attorney and mediator, nationally recognized expert, and author of many books including The Divorce Organizer & Planner, No-Fight Divorce, and How To Parent With Your Ex.  For more information about Brette, see www.BretteSember.com.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice.
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