Understanding Legal Separation
Many people think separating from their spouse and getting a legal separation are the same thing, but they’re not.
By Tracy Achen, Divorce Coach
An informal or trial separation is when one spouse simply moves out of the marital home. This gives the couple time apart to see whether they really want to proceed with a divorce or not. But simply living apart offers you no legal protection during a trial separation. Any assets or debts acquired during your trial separation will be considered marital assets and liabilities.
You and your spouse can verbally agree who is responsible for certain bills during your trial separation. You can also decide where the children will live and whether any support will be paid. But unless you have a written and signed agreement with your spouse, nothing will be enforced by the court.
What is a Legal Separation?
A legal separation is a written agreement that is filed with the court which addresses the rights and responsibilities of a married couple while they are living apart. Issues that can be addressed in a separation agreement include division of assets and debts, child custody and support, visitation schedules, alimony, etc.
Getting legally separated means you're still technically married and can't remarry. Almost all states recognize a legal agreement of separation except for Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas.
Benefits of Legal Separation
In many ways, getting a legal separation is much like getting a divorce. So why would someone go through the separation process instead of getting a divorce? Some of the advantages of legally separating include:
- Retaining your marital status for religious reasons. Being able to retain your marital status is important for certain faiths which prohibit divorce. In some religions, a person may even be excommunicated from the church if they divorce.
- Reassess the marriage - Separating allows a couple some time to live apart and see if divorce is actually what they want. As compared to an informal trial separation, a separation agreement establishes how everything will be handled while the couple is apart.
- Continuing insurance benefits - If a person is covered on their spouse's policy, having ongoing coverage ensures they can continue to receive necessary medical care. If you are considering getting a separation to retain coverage, be sure to check the policy to see if it addresses what happens if a couple legally separates.
- Retaining military benefits - The spouse of a service member is able to retain a military ID card, commissary and military exchange privilege's, and full benefits during a separation.
- Being able to meet the 10-year social security benefit requirement - Some couples want to remain married in order to meet the ten year requirement to qualify for certain social security benefits of a spouse.
- Protecting your financial interests while apart - Assets and debts acquired during a legally recognized separation are usually considered separate property. This can be important in states that require a period of separation before a divorce is granted.
- Possible tax benefits - There can be advantages to continuing to file taxes jointly. Where you live will affect whether you can file jointly since the IRS honors the divorce laws of each state. For example, Texas considers you legally married until a divorce is finalized. Therefore, you must file jointly while separated in Texas. On the other hand, being legally separated in California will allow you to file your taxes as either married filing jointly (both spouses must agree to file this way) or married filing separately. Regardless of where you reside, you must claim the same filing status on both your state and federal tax returns. Consult with a tax expert to find out which filing status is allowed in your situation.
- Outline the terms of divorce in advance - If the couple does decide that getting a divorce is the best decision, the separation agreement can be converted to a divorce agreement in some states or used to outline the terms of a divorce in others.
What to Consider before Getting a Legal Separation
While a legal separation can protect you before getting a divorce, it can also set precedence for the actual divorce. If your divorce case were to go to court, a judge would assume that if you were fine with the arrangements of the separation agreement, then there is no basis to make any big changes with the divorce.
Therefore, you should treat the separation agreement the same way you would a divorce, and don't agree to anything that you can't live with. This is why it is so important to have your lawyer look over the agreement and discuss the implications of it with you.
You can get started drafting your free separation agreement here if you feel legally separating is the best option in your situation.
Updated February 27, 2023
You can get more tips on separation and divorce in Tracy's book "Divorce 101: A Woman's Guide".
The following articles offer more information on separation: