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Legal Separation and Separate Maintenance

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Sometimes, when a divorce seems imminent, a married couple inquires about the possibility of "legal separation". Some states refer to legal separation by other names, such as "separate maintenance".

"Separation" versus "Legal Separation"

Usually, when people use the term "legal separation", they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony).

Typically, a court will have the power to resolve as part of a "legal separation" any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married.

Also, most jurisdictions require a waiting or "cooling off" period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of "legal separation" or "separate maintenance".

It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek the assistance of a lawyer in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.

Why People Seek Legal Separation

The reasons people ask about separation as opposed to divorce include:

  • Religious Concerns - they may have a religious objection to divorce;

  • Insurance Concerns - they may wish to ensure that one of the spouses has continued coverage through the other spouse's insurance provider;

  • Trial Separation - they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;

  • Divorce Waiting Periods - they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce;

  • Tax Purposes - Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;

  • Social Security and Pension Benefits - Sometimes spouses will wish to delay formal divorce until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits.

Important Considerations

  • If your separation later turns into a divorce, the manner in which you have divided your personal property may well be the manner in which that property becomes divided for the purposes of the divorce. That is, it is not unusual for a divorce settlement or judgment to award separated parties the personal property that is in their own possession. If there are important belongings that, for one reason or another, you will leave with your spouse upon separation, you may wish to make specific note in your separation agreement that both you and your spouse intend that property to come to you in the event of divorce.

  • If you contract for the division of property in your separation agreement, that contract will likely be binding upon you in the event of divorce. For example, if your separation agreement assigns the marital home to one spouse, and details how the equity will eventually be divided, absent a new agreement by both spouses it is likely that you will be bound by that earlier agreement upon divorce.

  • Insurance companies make money when they deny claims. If you are separating for the purpose of maintaining insurance coverage which would terminate upon divorce, check the policy language carefully. Some insurance companies are now including language which will cause coverage to lapse in the event of a legal separation.

  • Remember that separated couples remain married to each other. If you expect that you will wish to remarry, you will ultimately have to go to court to obtain a divorce.

  • Remember to separate your finances. Ordinarily, the money in a joint bank account belongs to both people named on the account. That is, if you are placing money into the account, your spouse may have a legal right to withdraw all of that money even if you are separated. If your name appears on a lease or mortgage for the residence where your spouse will live, you will remain liable for payments. Similarly, if you continue to share joint credit accounts, including credit cards, or your name appears on any utility bills (phone, gas, electrical, etc.) you will ordinarily be liable for any debt incurred by your spouse even after separation. It is thus wise to separate your finances, and to obtain credit cards and bank accounts in the individual names of each spouse, as part of the separation process.

  • Where pensions or government benefits are involved, it makes sense to consult with an accountant in relation to your financial situation as part of a legal separation, so as to make sure that you meet all of the necessary legal requirements to maintain your interest in those benefits.

What If Things Don't Work Out?

If you separate from your spouse hoping that there will be an eventual reconciliation, but things don't work out, the exact procedure for converting your separation into a divorce will vary depending upon where you live. In some states, for a period of time after a judgment of separate maintenance is entered, the parties may convert their case into an action for divorce. In other states, a new divorce action must be started. Some states fall in the middle, giving the court which issued the order of separation the discretion to allow the parties to amend their complaint to request divorce.