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, 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. 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. »
Return to questions
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. »
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.
»
Return to questions
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. » Return to questions
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
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 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.
» Return to questions
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
Topic: Can I have an intimate
relationship with someone else? 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. However, there are many
people who feel that once they have separated that their obligation
to the other person has ended. You have to do what is right for you
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 © WomansDivorce.com. All rights reserved.
Related Articles:
Separation and Moving Out
What is a Legal
Separation
Also see:
More questions and answers
Ask the Legal
Expert a question
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.
Divorce
Process / Children
and Divorce/ Emotions
and Divorce
Starting
Over / Financial
Survival / Relationships
Home /
Divorce
Guide / State
Resources
Divorce Books
/ Store / Survey
/ Contact /
Chat / Links
/ Newsletter
|
