How do I File for Legal Separation?

Jessica Ellis
Jessica Ellis

A legal separation is a court-approved agreement that allows a couple to divide up rights and responsibilities while still remaining legally married. Filing for legal separation is an important step, and requires careful consideration and preparation. In many regions, if a separated couple chooses to divorce, their existing separation agreement is used to determine a final division of assets and liabilities, thus it is important to ensure that agreements are fair and equitable when filing for a separation.

Filing for legal separation takes a great deal of thought and preparation.
Filing for legal separation takes a great deal of thought and preparation.

A couple does not need to file for legal separation in order to separate; some couples simply decide to split up for a period to determine if they want to remain married or divorce. A legal separation, by contrast, creates a legal framework for the separation period, so that each spouse is legally obligated to carry out certain duties and provide certain benefits. Some people choose to file for legal separation as a trial period before divorce, or may prefer a separation to divorce due to religious concerns, ability to receive or share benefits, and other personal considerations.

Legal separation laws can provide guidelines for the payment of child support.
Legal separation laws can provide guidelines for the payment of child support.

Before a couple decides to file for legal separation, it is first important to determine if the region of residency for a couple allows legal separation. Though many areas do, some US states, such as Texas, do not have a formally recognized separation. In areas that do not allow people to file for legal separation, divorce is often the only recourse for couples that wish to part.

In order to file for legal separation, at least one spouse must meet the residency requirement in the jurisdiction of the case. Residency requirements vary by region and typically require a verifiable residency of several months. Whichever court the separation documents are filed with will have jurisdiction over the case, so it may become important for one spouse to file first in order to have the court in his or her region handle the separation.

There are several considerations in a legal separation agreement that need to be worked out between spouses or through legal representatives. These issues include child support and custody, spousal support, provision of benefits, division of assets like property and cars, and division of financial responsibilities. Spouses who are able to amicably work out these details may be able to save a lot of money on lawyers and enjoy a much more streamlined separation process.

After the separation agreement is worked out, one spouse may file for legal separation by submitting a request to the court and have it served to the other spouse, or the couple may file a joint request. A spouse may file a counter-request if the settlement terms do not seem fair or agreeable, at which point the court will get involved in settling the agreement. If both partners agree to settlement terms, the documents can be signed and returned to the court, where they will be reviewed by a judge. As long as the judge believes the terms are fair, he or she will usually accept the agreement and grant a legal separation.

For some couples, legal separation is a viable alternative to divorce.
For some couples, legal separation is a viable alternative to divorce.
Jessica Ellis
Jessica Ellis

With a B.A. in theater from UCLA and a graduate degree in screenwriting from the American Film Institute, Jessica is passionate about drama and film. She has many other interests, and enjoys learning and writing about a wide range of topics in her role as a wiseGEEK writer.

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