Understanding Legal Separation

By Tracy Achen

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. Almost all states recognize a legal agreement of separation except for Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas.

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:

  • Being able to retain your marital status for religious reasons. 

  • Allowing 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. 

  • Being able to continue insurance benefits on your spouse's coverage. 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 certain military benefits. 

  • Continuing 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, as assets and debts acquired during a legally recognized separation may be considered separate property. This can be important in states that require a period of separation before a divorce is granted. 

  • Possible tax benefits by 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.

  • If the couple does decide that getting a divorce is the best decision, the separation agreement can be converted to a divorce agreement.

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 agreement here.

You can get more tips on separation and divorce in Tracy's book "Divorce 101".

The following articles offer more information on separation: