What Is a Legal Separation? Pros and Cons You Should Know

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When it comes to tough times in a marriage, couples often find themselves looking for a way out. 

Sometimes they have made the decision that there is nothing left, and they seek finalization through a divorce, while other times, the spouses may believe that living apart for some period of time may result in fixing the relationship. 

This is known as separation. But are you aware of the term ‘legal separation’? In this article, we will study what is a legal separation and what formal requirements a couple should consider while separating.

What is a legal separation?

What does legally separated mean?

Legal separation is available to a married couple who is no longer able to cohabitate due to a breakdown in the marital relationship or when one spouse is suffering from incurable insanity. 

Under these circumstances, the couple will choose to live separately under formal terms either agreed to between the parties or ordered by the court.     

Separating legally represents an in-between area in the law in which a married couple or couple in a domestic partnership is not living together as a married couple or domestic partners; however, they are not divorced or have not dissolved their domestic partnership yet.

Since a legal separation does not end a marriage or domestic partnership, a legally separated couple cannot remarry or enter into a partnership with someone else. 

Rather, separating legally acts as a middle ground between marriage or a domestic partnership and divorce of dissolution of a domestic partnership.

How long does legal separation last?

If you are legally separated from your spouse, you may remain so for as long as the two of you desire. A legal separation is reversible. How long you can be legally separated is your own judgment call. 

To be legally separated from your spouse, there is actually no need for you to get a divorce at some point. Dating while legally separated could be a possibility, but for it to transpire to marriage, the estranged couple has to get a divorce.

Legal separation vs divorce: Know the difference

Let us understand more about what is a legal separation by differing it from the process of divorce. 

Legal separation and divorce are distinct legal processes. 

We already know the legal separation definition. It is a process that allows couples to live separately while still being married, with provisions for financial and child-related matters. 

Divorce, on the other hand, dissolves the marriage entirely, terminating the legal relationship between the spouses and addressing similar issues.

What should my separation agreement talk about?

Before you consider how to get a legal separation, think about a separation agreement. A spousal agreement must consist of some key details, including the 5 major points elaborated below.

1. Spousal support

Similar to divorce, separating legally involves addressing marital assets, debts, child custody and visitation, child support, and spousal support. 

When the two spouses, who wish to be legally separated, can work together to reach an agreement about the respective terms, they will often prepare and submit a legal separation agreement to the court. 

This is certainly a preferred route as it eliminates much of the tension, emotions, and costs when the couple’s disagreements result in the court making the decision.

When it comes to spousal support, it is usually considered a factor of divorce. When separating legally, some states may have laws making it possible to obtain separate maintenance, which is similar to alimony. 

Since states have latitude when it comes to supporting laws, it is important to recognize that the laws will vary.

The bottom line is that each state (assuming it recognizes legal separation) will have its own laws related to spousal support or maintenance, thus determining the outcome of a request for support is difficult. 

If a state does recognize legal separation and permits spousal support during the separation, the result will be tied to the needs of the spouse and the ability to pay by the other spouse.

2. Custody of children

When it comes to making decisions about and for the minor child, the court will assign legal rights for child custody to one or both of the parents. These are decisions impacting the child’s environment, such as where they will go to school, their religious activities, and medical care. 

If the court wants both parents to be involved in this decision-making process, they will most likely order joint legal custody. On the other hand, if the court feels that one parent should be the decision-maker, they will likely order sole legal custody to that parent.

When it comes to making decisions about with whom the child will live, this is known as physical custody. This is distinguishable from legal custody as it focuses on the day-to-day responsibility of caring for your child. 

Like legal custody, the court may order joint or sole physical custody and visitation rights for both. In many states, the laws are intended to ensure that both parents are involved with their children after divorce.  

Thus, absent certain reasons (e.g., criminal history, violence, drug and alcohol abuse, etc.) that may place the child in danger, courts will often look towards a joint physical custody model.

3. Visitation schedules

It is generally beneficial if the spouses can decide who gets custody during a separation, negotiate a separation and child custody as well as visitation rights agreement without requiring a court hearing. 

If both spouses agree to the terms, the court can review the plan, and if accepted, will be incorporated into a custody order and separation legal rights for the estranged parents. Ultimately, the plan will need to be created in the best interest of the children.

In some visitation schedules, if the noncustodial parent has a history of violence, abuse, or drug and alcohol abuse, there will be some restrictions added to their visitation rights, such as they may be required to have someone else present during their visitation time. 

This is referred to as supervised visitation. The individual overseeing the visitation will generally be appointed by the court or, in some situations, be decided by the parents with the court’s approval.

4. Child support

The law guiding eligibility for child support varies from state to state. The amount is basically determined by a judge in family court unless both parents mutually arrive at a consensus amount.

Child support payment solely revolves around who has custody of the child and who has not.

A parent who has total custody of the child may be a stay-at-home dad or mum. In that case, he or she hasn’t got enough funds to take care of the child’s needs.

It could also happen that the custodial parent only takes up part-time employment to have more time to take care of the child’s needs. Child support is, thus, structured and calculated in a way that reflects this reality and needs.

5. Debts division

The division and resolution of debts can be complex and highly disputed in many separations and divorces across the United States.

Debts accumulated during the marriage are typically shared, regardless of individual names associated with them.

To ensure clarity and documentation, it is advisable for both parties to make copies of financial records. These records encompass mortgages, credit cards, bank loans, lines of credit, bank statements, and all other relevant financial information pertaining to the marriage.

If you’re willing to work on your marriage while being separated, watch this video for some insight:

Is legal separation right for you?

We have already studied legally separated meaning and its technicalities for you to make a sound decision in everybody’s favor.

Determining if a legal separation is suitable for you depends on your unique circumstances. Consider factors like your goals, relationship dynamics, and legal implications to make an informed decision regarding your marital status.

Seeking professional advice through couples therapy can be a good option if you are in two minds.

Pros and cons of legal separation

Couples may choose to be legally separated rather than get a divorce for various reasons. 

But before they make a decision and ponder over how to process legal separation, one must consider the pros and cons associated with separating legally and if it would be a better option than a trial separation or divorce.

Pros

• One significant benefit of separating legally is that one of the two individuals from the couple has a religious obligation that doesn’t permit them to get a divorce. In such a scenario, separating legally allows the couple to not violate their religious beliefs and live separately.
• When separating legally, couples are able to make the same decisions and choices that they would otherwise make during a divorce. It is certainly a great option for couples who do not want to get divorced but want to live separate lives.
• A few people might have the option to remain on their partner’s medical coverage plan in the event that they are legally separated rather than divorced. There likewise might be other monetary advantages to separating legally over divorce.
• Legal separation presents the opportunity for reconciliation or resuming the marriage.
• The IRS publication 504 allows the legally separated spouse to deduct spousal support, and also, the other benefit is that you can still file jointly on your taxes.

Cons

• With similar legal requirements as a divorce, paperwork, litigation, and trial proceedings, separating legally can be as much taxing as a divorce. 
• The complexities of separating legally can put a lot of burden on an already delicate relationship.
•  Due to the cost and commitment needed for separating legally, a trial separation can prove more beneficial for couples who are trying to figure out the direction their marriage is heading.
• States like Tennessee and Maryland consider sexual relationships with a new partner as adultery, which can impact alimony payments or the division of property if the couple decides to file for divorce later.
• Another disadvantage of separating legally is that some states require you to go through the entire legal process in case you do decide to get a divorce.

Additional questions

In this section, let us gain some more clarity on various aspects, legal considerations, and practical advice surrounding the process of separating from your spouse.

• What is the first thing to do when separating from your spouse?

When separating from your spouse, the first important step is to prioritize open and honest communication. Initiate a conversation to discuss your decision, intentions, and any immediate concerns regarding finances, living arrangements, and children, seeking professional guidance if needed.

• Is separation the same as divorce?

As we have already discussed above, separation and divorce are distinct legal processes. Separation involves living apart while still being legally married, whereas divorce terminates the marriage. Both have their own implications, such as division of assets, child custody, and financial responsibilities.

Make an informed decision

If you pursue the route of legally separating, just as with divorce, custody, visitation, child and spousal support are subject to final orders, and assets and debts are permanently divided.

If you are seeking separation, it is advised that you seek out the guidance of a family attorney. This will be an opportunity to review your current situation to decide if separation, legal separation, or divorce is the best choice for you.