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How to file for separation

How to file for separation

How to file for separation

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How to file for separation

If you’ve decided to legally separate from your spouse, the first step in this process is to file for a legal separation. Before doing so, know that a legal separation is a binding, legal contract that is just as important as a divorce; the only difference is that on paper, your marriage and legal rights that come with it remain intact. In other words, like a divorce, there will be a division of living arrangements, finances, and child custody.

It’s also important to note that when filing for legal separation, anything you agree to in a legal separation agreement can set precedence should you then file for divorce. For example, if you agree to let your partner live in the marital home when you file for a legal separation and you continue to make mortgage payments, a judge may order you to continue doing so after a divorce.

DO NOT agree to anything in a legal separation agreement that you would not agree to if you were negotiating a divorce settlement.

Here’s how to file for legal separation.

Step 1: Confirm Your State’s Residency Requirements

First, you must meet your state’s residency requirements. Residency requirements are the same for legal separation and divorce. To learn about your state’s residency requirements, check your state’s divorce laws. For example, in California, a married couple can file for legal separation if at least one of you lives in the state. Similarly, in the case of domestic partnerships, as long as the domestic partnership was registered in California, both parties may file for legal separation even if you don’t live in the state. If your domestic partnership isn’t registered in California, one of you must live in the state in order to file for legal separation.

Step 2: Move to File for Separation Petition

If residency requirements are met you will then file a legal separation petition with the court. You may do this by contacting an attorney, using online resources (such as your state government’s website), or contacting your court clerk and filing on your own, otherwise known as pro se. Note that a fee is required to file your legal separation forms. In California, for example, the filing fee is approximately $435, though fees vary by county.

If you meet the state’s residency requirements, file for separation in the county where you live.

Step 3: Move to File Legal Separation Agreement

Along with your petition for a legal separation, you will file your legal separation agreement. Make sure the agreement covers all issues such as child custody, child support, visitation, spousal support, how marital assets (like a home or any vehicles you purchased together) might be distributed, who lives where, who pays what debts, any rules and guidelines pertaining to dating other people; which may be considered adultery in some states.

Step 4: Serve Your Spouse the Separation Agreement

If you and your spouse are not filing for separation jointly, you will need to have your spouse served once you have filed your petition for legal separation. As with a divorce, your spouse will have a certain period of time (typically 30 days) in which to respond to your petition for a legal separation.

Step 5: Settle Unresolved Issues

If your spouse does not agree to the provision set forth in the petition, they have a right to file a counter-petition. If this is done and you can’t come to an agreement via mediation or with collaborative law, you will have to go before a judge to settle the issues you were unable to agree upon. In some cases, a legal separation can be as complicated as obtaining a divorce.

Step 6: Sign and Notarize the Agreement

If your spouse agrees to the provisions in the petition, all you will need is for both spouses to sign and notarize the agreement so the court clerk can enter it into the court records for approval by a judge. Do note, however, that anything you do before the court signs off on the separation agreement may affect certain outcomes, particularly as it applies to personal belongings or custody, says David Reischer, Esq., Family Law Attorney & CEO of LegalAdvice.com. For example, “A judge may view a person that moves out of their home as having given up. The court could interpret the person that moved out of the home as abandoning the relationship and forfeiting rights to claim ownership or custody at a future date,” says Reischer.

Step 7: Organize Your Records and Execute the Agreement

Once a judge has reviewed and signed your legal separation agreement, it will be filed and on record with the court clerk. After it is on record with the court you will want to be sure to keep a copy for your own records and follow the guidelines set out in the separation agreement.

Overall, since laws vary from state to state, be sure to check with an attorney to make sure you are taking the correct steps to legally protect yourself.

New: We’re offering a new service to help you file a joint or simple divorce application online at any time without visiting a court. Learn more.

Separation agreements and court orders can resolve some family matters when you separate but they do not legally end your marriage. The only way to legally end your marriage is to get a divorce. The following links will help you find more information about divorce law and procedure.

Getting Started

Settling out of court

Going to court

If you and your spouse cannot agree on how to resolve your family law issues, you can go to court and ask a judge to decide for you. If you are married, you will need to apply to a court to obtain a divorce order in order to end your marriage

Understanding the family court system in Ontario Guide to Procedures in Family Court This guide provides steps to follow when going to court, including which forms must be completed, procedures when attending court and how to take steps in court cases. How to get a copy of a Divorce Order, Certificate of Divorce or other court document Court locations and addresses across Ontario

Completing Court Forms

Guided Pathways to Family Court Forms If you need help completing your family court forms, you can use the Guided Pathways to Family Court Forms, a free online tool developed by Community Legal Education Ontario (CLEO) and the Ministry of the Attorney General. The tool asks you questions and puts your answers into the required court forms. When you’re finished, you can save or print your completed forms before filing them in-person at the courthouse or online using the Family Claims Online service.

You can also find more information about family law on CLEO’s Steps to Justice website.

Once you and your partner make a separation agreement , you may choose to file it with the court.

You can do this at any time as long as your separation agreement hasn’t been changed by a court order or by a new separation agreement.

You have to file Form 26B and your separation agreement at the Ontario Court of Justice or the Family Court branch of the Superior Court of Justice. You cannot file your separation agreement at a Superior Court of Justice that doesn’t have a Family Court branch.

You can file your documents with the court online or in person. File your court forms and documents below explains how to do this.

Some of the reasons to file your separation agreement with the court are so:

  • The court can enforce the support terms of your agreement. This means the court can order you and your partner to follow it.
  • A government agency, called the Family Responsibility Office can enforce support.

The FRO is a government agency that collects support payments from the person who has to pay them, sends the payments to the person who has to get it, and makes sure child support and spousal support payments are made.

If your partner misses payments, the FRO can take action to enforce the order or agreement. For example, if your partner doesn’t pay support, the FRO can order their employer to deduct money from their wages, suspend their driver’s licence, or start a court case that can result in jail time.

If you want FRO to enforce your agreement, you have to first file your current separation agreement with the court as explained above. After the court confirms that your separation agreement has been filed, fill out FRO’s Registration package to register your separation agreement with them.

File your court forms and documents

Rule 1.1 tells you how to file and issue your family law court forms and documents online. You can file your documents online or in person at the court. Depending on your family law issue and the court, you might also be able to file by email. Check the Family Law Rules and the court’s orders, Notices and Practice Directions. Or call the court for more information.

Rule 1.2 says before you file your documents, you must remove or black out all financial account numbers and certain personal information, such as:

  • social insurance numbers
  • bank account numbers
  • credit card numbers
  • account numbers for mortgages, lines of credit, and other loans

You must keep the original documents that show this information.

A judge might ask to see it.

File online

You can now file most family law forms and supporting documents online for a family court case in the Ontario Court of Justice or the Superior Court of Justice. But you cannot file forms and documents online:

  • to request an urgent hearing
  • for a court date that’s 5 business days or less away
  • to meet a filing deadline that’s 5 business days or less away

To file online, your court forms and supporting documents must be filled out, signed, and dated. Some forms and documents may need to be sworn or affirmed. If they do, it means you must swear or affirm that the information in your form is true before you sign it. You do this in front of a notary public or commissioner for taking affidavits. This person also signs and dates the form.

Your forms and documents must then be scanned and saved as PDF documents.

If your documents are not in English or French, you need a certified translation. This must also be scanned and saved as a PDF. You can find a translator through the Association of Translators and Interpreters of Ontario.

To file your court forms and supporting documents online, go to ontario.ca/familyclaims. You will need a ONe-key ID. To create this key you need an email address and have to set up a username and password.

Make sure you have everything ready before you start filing online. Once you’ve started, your session ends if you’re inactive for 15 minutes. Your information won’t be saved. You will need to start over again.

After you submit your court forms and documents online, you cannot view them online later. So it’s important to keep a copy of everything for your records.

You must also pay your court fees online. If you can’t afford to pay the court fees, you can ask for a fee waiver certificate online so that you don’t have to pay most court fees.

See the question ‘How do I file court forms for my family law case online’ on Steps to Justice for more information.

Court response

After you file your forms and documents online, you get an email to confirm that your documents have been submitted, but not yet filed with the court. Don’t delete the email. You should also print a copy or take a screenshot for your records.

Within 5 business days you find out if your documents have been accepted or rejected. If your documents are:

  • accepted, you get an email confirming your documents have been filed
  • rejected, you get an email saying your documents haven’t been filed, the reasons why they were rejected, and that any fees you paid will be refunded

If your documents are rejected, you can either:

  • correct or fix all the things that led to your documents being rejected and then refile online if the deadline to submit them is more than 5 business days away, or
  • file your documents in-person or, if allowed by the court, by email

If you don’t hear from the court within 5 days, check with them to make sure your documents were submitted successfully.

If you have any questions about your specific case, call the family court in your municipality.

File in person

If you’re not allowed to, or don’t want to file your documents online, you can file them in person at the courthouse. To submit in person, take 3 copies of your court forms and documents to court.

If you’re not which court to go to, you can call the family court in your municipality to ask.

How to file for separation

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Learn about the difference between getting a divorce and a legal separation and why people might choose a one over the other. #3253EN

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Read Online

  • What is a legal separation?
  • Why file for separation instead of divorce?
  • How do I file for legal separation?
  • Do I need to file a petition for separation before filing for divorce?
  • I filed for legal separation. The court has not entered a final decree yet. I have changed my mind. I want a divorce. What should I do?
  • I have a final legal separation decree. I have changed my mind. I want a divorce. What can I do?
  • I want a separation. My spouse wants a divorce. What will the court do?
  • I do not want to be responsible for debts my spouse takes on after we separate. What should I do?
  • Can I get an annulment?
  • Who can get a declaration of invalidity?
  • Can either spouse file for a declaration of invalidity?

What is a legal separation?

A court case that can give you everything a divorce does, but does not end the marriage. You are still married.

Why file for separation instead of divorce?

You do not want to end the marriage. Example: your religion keeps you from getting a divorce. You do want the other relief available. Examples: parenting plan, property and debt division.

How do I file for legal separation?

The procedure is like and uses many of the same forms as divorce. You start by filing FL Divorce Form 203, Petition for Legal Separation. You can use our packets:

Do I need to file a petition for separation before filing for divorce?

I filed for legal separation. The court has not entered a final decree yet. I have changed my mind. I want a divorce. What should I do?

You must file and serve a new petition for divorce.

I have a final legal separation decree. I have changed my mind. I want a divorce. What can I do?

You can change a legal separation decree to a divorce order. Once six months have passed after entry of the legal separation decree, either spouse can file a motion to change it. The court must grant the request. The rest of your legal separation orders, such as any parenting plan and child support order, will stay in effect.

I want a separation. My spouse wants a divorce. What will the court do?

If you file for legal separation, but your spouse counter-petitions for divorce, the court will probably grant the divorce. To get a divorce, one spouse only needs to show you have irreconcilable differences. This means there is no hope of you getting back together.

I do not want to be responsible for debts my spouse takes on after we separate. What should I do?

File for divorce and a motion for Temporary Family Law Orders.

Can I get an annulment?

Sort of. You can file a Petition to Invalidate Marriage, FL Divorce Form 205. If the court finds reasons to, it will grant you a Declaration of Invalidity of Marriage. This declares the marriage was void (could not legally exist) from the day it started. Only a very few cases will fit the definition. See the next section.

Who can get a declaration of invalidity?

You must be able to prove at least one of these:

One or both of you were under 17.

You were under 18 when you married. You did not have parental or court approval.

One or both of you were married to someone else when the marriage took place.

You are too closely related by blood.

One of you could not consent to the marriage, because of mental incapacity or alcohol or drugs.

One of you used force, threats, or fraud to make the other marry you.

You have not chosen to keep living together as spouses after turning 18, getting the ability to consent, or after the force or threat stopped or discovery of the fraud.

Can either spouse file for a declaration of invalidity?

It depends. In the case of marriage by fraud or duress, only the spouse who was the victim of force or fraud can ask the court for a declaration of invalidity. Talk to a lawyer if you want to file this kind of case, or have been served with such a petition.

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of December 2019.

© 2019 Northwest Justice Project — 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)

South Carolina does not recognize “legal separation.” Instead, the South Carolina Family Courts issue Orders of Separate Maintenance and Support, which provide specific details regarding parties’ child custody, visitation, and support arrangements, as well as maintaining marital assets and paying marital debts, until the case is resolved at a final hearing or trial. An Order of Separate Maintenance and Support is a temporary order; it does not cover the issue of divorce, and it does not end the parties’ marriage.

In South Carolina, the only way to obtain a no-fault divorce is to live separately for one year. Living separately occurs when spouses live in two different locations. Living in different bedrooms in the same house does not qualify as living separately. Spouses do not need an Order of Separate Maintenance and Support to live separately, but it can help the spouses protect their financial interests and resolve visitation and custody issues during the separation period.

Either spouse may file an action for an Order of Separate Maintenance and Support, so long as the parties are living separate and apart (in a no-fault situation), or fault grounds can be proven.

Issues such as child custody, visitation, and support, which spouse will remain in the marital home, who will be responsible for paying the mortgage and other costs associated with the home during the separation period, closing joint accounts, allocating marital debt, transferring titles to personal property, such as automobiles and boats, into one spouse’s name or the other’s, (depending on who retains possession of the property), spousal support, and health insurance are addressed in an Order of Separate Maintenance and Support.

If the spouses are able to reach an agreement for an Order of Separate Maintenance and Support, the Judge will review the Agreement to make sure it is fair to both parties, in the best interest of their minor children, and that it follows South Carolina law.

The procedure for filing for an Order of Separate Maintenance and Support in Family Court is as follows: one of the spouses, who will be the Plaintiff, files a Summons and Complaint for an Order of Separate Maintenance and Support, and a Notice and Motion for Temporary Relief, or has his or her attorney do so. Once filed, the Summons, Complaint, and Notice and Motion for Temporary Relief are personally served upon the other spouse or his or her attorney. The spouse served is the Defendant, meaning he or she is not the filing party. The Defendant, or his or her attorney, then has thirty (30) days to file an Answer, responding to the Complaint, and Counterclaim, telling the Court what he or she would like the Judge to do regarding the issues in the case. The case is then heard by a Judge, who will decide the issues or review and approve an agreement between the parties. This Order will control the issues until the parties reach a Final Agreement as to all issues, or until the trial.

Divorce is the formal legal ending of a marriage. It is separate and distinct from property settlement and parenting arrangements after the breakdown of a marriage.

You do not have to get a divorce when you separate unless you want to remarry, but staying married may affect your legal obligations. It is important to get legal advice if you are unsure of what you wish to do.

To be able to get divorced you need to show that your marriage has ‘irretrievably broken down’. This is demonstrated by being separated for 12 months or more, and there being no likelihood of the relationship resuming. The separation can be initiated by one person, or both.

Australian law does not look at whose fault it is that the marriage broke down when considering a divorce application.

Can I get divorced?

To apply for a divorce, you must have been separated for at least 12 months, and you or your spouse must:

  • be an Australian citizen, or
  • live in Australia and regard Australia as your permanent home, or
  • ordinarily live in Australia and have done so for at least 12 months before the divorce application.

If you married overseas, you can apply for a divorce in Australia as long as you meet the criteria above.

If you have been married for less than two years, you will need to attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate.

A divorce application can be applied for by one person alone, or jointly.

Separation

Separation generally means living apart from each other. It can be unilaterally initiated by either spouse, or mutually decided.

To prove that your marriage has ‘irretrievably broken down,’ in order to obtain a divorce, you must have been separated for at least 12 months.

It is possible to be ‘separated under one roof’ if certain criteria are met. If you are separated under the one roof, it is important to get legal advice.

How to apply

You will need to apply to the Federal Circuit and Family Court of Australia for a divorce. If you are in Western Australia, you will need to apply to the Family Court of Western Australia. The family law court websites have information, fact sheets and application kits to guide you through this process.

You can apply together (a ‘joint application’), or one person may apply (a ‘sole application). Whether you will need to attend court will depend on whether the application is joint or sole, and whether you have children under the age of 18.

Many people now apply for a divorce online. Information on how to apply can be found at the following websites:

There are fees for applying for a divorce, which you will be responsible for. Information about current fees, including information about fee reductions or exemptions, can be found at the family law courts’ websites:

Children and property

A divorce order will not include parenting or property arrangements.

If you have children under the age of 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. ­Children and family law has information on making arrangements for the care of your children after a relationship breakdown.

You can apply for property orders before your divorce becomes final. If you haven’t obtained property orders once your divorce becomes final, and want to, you must apply to court for property orders within 12 months. Money and property has information on dividing your money and property after a relationship breakdown.

Timeframes

Like many other family law matters, it can be difficult to provide a precise timeframe for the granting of a divorce.

In most cases, the divorce order takes effect one month and one day after the order is made by the court. However, the court may not make an order at the first hearing, and may require more information from you.

Anh and Linh are married and do not have any children. They have decided to divorce. Linh finds that the Federal Circuit and Family Court of Australia website has lots of information about the process. After being separated for 12 months Anh and Linh decide that they want to make a joint application for their divorce. They are able to do this online. Because they have made a joint application, and have no children, they do not need to attend court.

Related links

Next steps

Note and record key dates e.g. marriage, children’s births and separation date.

Find your marriage certificate if you have one.

Last updated: 28 January 2022

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It is common for a spouse to move out of the marital home when a marriage breaks down. The parties may live apart for several months or even years before one of the spouses begins the legal process to dissolve the marriage. However, living apart and a legal separation are not the same thing.

Some states recognize legal separation. A spouse may file a court proceeding to obtain an order declaring that the parties are legally separated. The parties are still married, but the court issues an order related to matters such as custody, child support, spousal support, and property division.

Florida does not recognize legal separation. You cannot petition the court for a legal separation. You may live apart, but you are considered married until you petition for and obtain a dissolution of marriage through the Florida courts.

Legal Separation vs. Temporary Relief

It can be easy to confuse legal separation with temporary relief in a divorce matter. When a spouse files for divorce, the spouse may request that the court order temporary relief for a variety of issues. For example, a spouse might need the court to resolve issues related to custody, support, and living arrangements on a temporary basis.

Temporary relief is an interim solution. It is not an order for legal separation. The relief is granted while the divorce is in process.

Problems Can Arise When a Couple Chooses to Live Separately While Married

The longer you live separate from your spouse, the more complicated your divorce proceedings may become when you file for dissolution of marriage.

For example, if a woman becomes pregnant while living separate from her husband, the husband is still considered the child’s legal father. The mother, father, or the alleged father would need to file a paternity action to determine which man has parental rights.

Spouses might move to another state while they are living separate and apart. It could make obtaining a divorce much more complicated.

Issues may arise regarding debts and marital assets when spouses live apart for years before petitioning for a divorce. Assets obtained after a separation could be considered marital assets and subject to property division during the divorce.

Spouses who live separate and apart might date other people while they are still married. Florida is a no-fault divorce state, so adultery is generally not considered when parties petition for a dissolution of marriage. However, dating while you are separated could have a negative impact on your divorce, in some cases.

If spouses have a legally binding marital agreement, the terms of the agreement could come into play even though they live separately. Depending on the agreement’s terms, it could make the divorce process easier or more complicated if the spouses have lived apart for a substantial period.

Can I Receive Child Support or Spousal Support Without Filing for a Divorce?

There are a few cases in which a spouse may petition the court for domestic support payments without filing for a divorce. A spouse may petition the court for child support or spousal support if the spouse needs the support and the other spouse has the ability to pay the support. The court makes a decision based on what it believes is just and proper given the case’s circumstances and facts.

Is There a Benefit To Living Separately Before a Divorce?

In situations related to domestic violence, a spouse may need to leave the marital home or petition the court to have the abusive spouse leave the marital home. It is generally safer for the abused spouse to live separately while seeking a divorce.

When spouses argue and fight, it can be beneficial for the spouses to live separately while deciding if their marriage can be saved or if they want a divorce. It can also benefit children because they are not subjected to the tension and arguments between their parents. However, each case is different, and you must decide what is best for you and your child.

If you are unsure whether living separately might have adverse consequences for a divorce action, you might want to consult with a divorce attorney before moving out of the marital home.

An attorney explains your legal rights and the pros and cons of moving out of the marital home before initiating divorce proceedings. Depending on your situation, an attorney might be able to file a petition with the court to grant temporary relief so that you can remain in the home while the divorce is in process.

In most cases, you can benefit from consulting with a divorce lawyer as soon as possible when you decide to leave your spouse or seek a divorce. Having information about divorce laws and your options can help you avoid mistakes that could work against your best interests.

To learn more, call our law firm at 407-898-2161 or visit our contact us page to send us an email.

In order to file a divorce in Georgia, you first have to be legally “separated”. But this does not mean that you or your spouse has to move out of the marital residence. Under Georgia law, you simply have to suspend “marital relations” with the intention to divorce. Parties can be legally separated while living in the same household. There is no requirement that there be a “separation agreement”, in writing or verbally, although an agreed or verifiable date is best. And there is no specific time period required, although at least 30 days is recommended. So, if you live in Georgia, you are legally separated if either spouse moves out, or moves into another bedroom, with the intention to file divorce.

In Blasingame v. Blasingame, 249 Ga. 791 (1982), the Supreme Court noted: “Marital separation means a suspension of marital relations between husband and wife without dissolution of the marital relationship. The suspended conjugal rights include the company, the cooperation, assistance, and intimacy of the other spouse in every conjugal way . It is not essential that the husband or wife should leave the marital homeplace; separation can occur when one spouse moves into another room with the intent and purpose of suspending conjugal rights.”

In order to divorce, the separation must be maintained. If “make up relations” occur, temporary support agreements, and the divorce generally if a complaint has been filed, are compromised. “Georgia law provides that voluntary cohabitation shall set aside all provisions made for permanent alimony of a spouse …. However, the effect of cohabitation is to nullify only future obligations for permanent alimony and does not require the spouse to return any property or payment already received.” See, McConaughey’s § 2:24.

And the specific date of the separation can be important. So, it is best that a divorcing spouse sets a date that is easily verified. For example, it can be January 1st, or the date one spouse moves out, or it can be the day after a memorable fight or incident prompting separate bedrooms.

As a general rule, after separation, evidence of support payments is inadmissible. See, McEachern v. McEachern, 260 Ga. 320 (1990) (Evidence of post separation support payments is not admissible in a divorce case unless the evidence should be permitted for impeachment purposes to prevent a fraud). The Court’s focus is on the current financial circumstances of the parties at a final trial, which may be a year or more after the case is filed. The Georgia Supreme Court has also recognized that temporary support agreements may not be realistic “in the long run” and such agreements have been excluded at a final trial on the theory that they may mislead or confuse the jury. See, Horton v. Horton, 288 Ga. 17 (2010pos).

If a spouse is seeking to reduce historic support, the specific date of separation is especially important. In this situation, the obligated spouse will usually want to push back the date of separation as much as possible to exclude evidence of voluntary payments. The spouse receiving support will typically argue the “separation” alleged was not a legal until later. Support payments made prior to legal separation are admissible, and the actual date of separation, if disputed, is a question of fact. See, Groover v. Groover, 279 Ga. 507 (2005).

So, again, it is best to pick a clear date and stick to it. As this date can impact support payments, you will want to consult Atlanta Divorce Attorney Russell Hippe before making this decision.

Covid-19 Important New Information

Due to the Covid-19 pandemic, there is new information available. Please visit the Kentucky civil legal aid program in your area to learn more.

Hay nueva información disponible debido a la pandemia de Covid-19. Puede visitar su oficina de asistencia legal local de Kentucky para obtener más información.

  • AppalRed (South and Southeastern Kentucky): https://www.ardfky.org/node/333
  • Legal Aid of the Bluegrass (North, Northeastern, and Central Kentucky): https://lablaw.org/covid19
  • Legal Aid Society (Louisville and surrounding counties): https://www.yourlegalaid.org/covid19responseandresources
  • Kentucky Legal Aid (Western and Southwestern Kentucky): https://www.klaid.org/covid-19-legal-update

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GENERAL LEGAL SEPARATION INFORMATION

I am thinking about divorcing my spouse, but am not sure if I should. Is there anything else I can do?
Yes. You can file a legal separation from your spouse. You can do this when you don’t want a divorce, but you cannot currently live with your spouse.

What is the difference between divorce and legal separation?
Divorce is when a judge legally ends your marriage. Legal separation doesn’t end the marriage. The court can, however, issue orders like the ones issued in a divorce case concerning property, debts, and children. A legal separation is like a “temporary divorce.” However, the divorce allows you to marry again, whereas legal separation does not.

What if my spouse wants a divorce, but I don’t? Can I get a Legal Separation instead?
Yes and no. If your spouse will agree to try a Legal Separation to see if you can work out your issues, then it may be a good option. However, if your spouse does not agree and still wants a divorce and the court finds that the marriage is irretrievably broken (meaning, there is no way for you and your spouse to reconcile) then the court must dissolve the marriage rather than grant a legal separation.

How long does a legal separation last?
A legal separation can last up to one year. After one year you should be ready to decide if you want to get a divorce or get back together with your spouse.
If, after one year, either party moves for dissolution, the decree of legal separation is converted to a divorce decree. All orders of a legal separation end when the legal separation ends.

What do I have to do to get legally separated from my spouse?
You need to file a Petition for Legal Separation. In your petition you will need to tell the judge the reasons why you think you and your spouse cannot currently live together. Either you or your spouse must be a resident of Kentucky for six months before you file the petition, and a resident of the County where you file.

Can I file for legal separation if my spouse has already filed for a divorce?
No. If your spouse has filed for divorce, you will not be able to apply for legal separation.

If I am legally separated, can I still get support for myself and my children from my spouse?
Yes. In fact, you can ask for temporary maintenance, child custody, possession of property, and child support. You can also ask for temporary visitation rights, counseling, a temporary restraining order or a protective order. The court will not automatically grant these orders; you need to request them first.

What is temporary maintenance?
Temporary maintenance is money paid from one spouse to another during the legal separation. It is generally intended to preserve the standard of living of the family.

You mentioned that there was a possibility of counseling. Can you tell me more about that?
You, your spouse, and any of your children can ask a judge to order you to attend counseling so that you can try to improve your marriage. But the judge cannot require you and your family to get counseling together if either you or your spouse is against it, or if there has been any violence in your marriage or life together.

Is there anything else I need to know before I begin to prepare for a legal separation?
Think about getting legal assistance. A separation or divorce action requires a number of forms to be submitted to the court. Make sure all the information you provide is up to date and accurate. Also, you should be aware that the information you give your attorney is confidential, so you don’t have to worry about the kind of information and detail that you provide. The more open and honest you are, the better your attorney can help you.

Do I have to file for a legal separation if I want to separate from my spouse?
No. You can simply move out and live separately. However, if you want court orders on the marital property and debts or about the children, you should file for a legal separation. Also, if you have not filed for divorce or legal separation, you may be liable for some of your spouse’s debts even if you are no longer living with your spouse.

Return to the top of this document.

LEGAL SEPARATION QUESTION AND ANSWER SECTION

I am thinking about divorcing my spouse, but am not sure if I should. Is there anything else I can do?
Yes. You can file a legal separation from your spouse. You can do this when you don’t want a divorce, but you cannot currently live with your spouse.

What is the difference between divorce and legal separation?
Divorce is when a judge legally ends your marriage. Legal separation doesn’t end the marriage. The court can, however, issue orders like the ones issued in a divorce case concerning property, debts, and children. A legal separation is like a “temporary divorce.” However, you cannot remarry after a legal separation. You must have an actual divorce decree before you can remarry.

What do I have to do to get legally separated from my spouse?
You need to file a Petition for Legal Separation. In your petition you will need to tell the judge the reasons why you think you and your spouse cannot currently live together. Either you or your spouse must be a resident of Kentucky for 180 days prior to filing the petition, and one of you must be resident in the county where you file for the legal separation.

Can I file for legal separation if my spouse has already filed for a divorce?
No. If your spouse has filed for divorce, you will not be able to apply for legal separation.

If I am legally separated, can I still get support for myself and my children from my spouse?
Yes. In fact, you can ask for temporary maintenance, child custody, possession of property, and child support. You can also ask for temporary visitation rights, counseling, a temporary restraining order or a protective order. The court will not automatically grant these orders; you need to request them first.

What is temporary maintenance?
Temporary maintenance is money paid from one spouse to another during the legal separation. It is generally intended to preserve the standard of living of the family.

Every year in British Columbia, thousands of couples decide not to live together anymore. The process of ending a relationship is not an easy one, and it takes time to fully recover from a separation.

Family Justice

These web pages provide general information about family law in British Columbia. They have information for people considering changes in their family relationships such as separation and divorce, and may be of interest to people thinking of marrying or living with someone in a marriage-like relationship.

  • Basics of Family Law
  • Your Options
  • Who Can Help?
  • Keeping Your Family Safe
  • The Family Law Act
  • Glossary
  • COVID-19 legal questions
  • COVID-19 service changes

International child abduction

Cases involving international child abduction can be heart-rending for the left-behind parent. The pain of unexpectedly losing contact with a child is often compounded by the complexities of dealing with long distances, a foreign court and family law system, a different language and financial pressures.

  • Frequently asked questions
  • Helpful links

Online Divorce Assistant

Joint divorce means making an application for a divorce together with your spouse. It means that you and your spouse agree about getting a divorce and that you agree about all of the family law issues relevant to your situation, such as spousal support, and the division of family property and debts.

Additional Resources

  • Legal Aid BC: Family Law in BC
  • How to obtain a divorce certificate

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Are you considering separating from your spouse?

If so, below are some important facts and information regarding separations in Canada. We will clarify a few common misconceptions about separations and then help you to understand exactly what a Separation Agreement is and what it needs to cover.

How to file for separationFirst, there really is no such thing as filing for ‘legal separation’ in Canada. You are legally separated as soon as you and your spouse are ‘living separate and apart’. However, the term ‘legal separation’ is commonly used to describe the contract that is created between two spouses at the time of their separation.

Second, there is no time limit to being separated, and a divorce will never automatically occur after or because of a separation. In fact, you can remain indefinitely separated from your spouse without ever filing for divorce. The only legal reason to obtain a divorce is if one partner wishes to remarry.

In order to file for divorce in Canada you must first complete a full one year separation period. The only exception to this rule is if your divorce is filed under the grounds of adultery or cruelty. There are three acceptable grounds for divorce in Canada and each of these are outlined in the federal Divorce Act and explained in detail on our Divorce page.

One Year Separation Period

As noted above, there are no time limits to a separation in Canada. However, if you are using separation as grounds for your divorce, then you must be separated from your spouse for a minimum of one full year. You can begin the application process for divorce the day that you are separate, but the courts will not grant you your divorce until the full year has passed.

If during this one year separation period you and your spouse get back together, this reconciliation will not affect your one year separation period unless you are back together for a period, or multiple periods, equaling more than 90 days. The purpose of this law is to allow couples a chance to try and work on repairing their marriage, without delaying a divorce in the event that their attempts are not successful. If you do indeed reconcile for a period of or exceeding 90 days and then separate again, you will be required to begin a new full one year separation period before a divorce can be granted.

Lastly, being separated from your spouse does not always mean that you must be living at separate addresses. Being separated means that you and your spouse must be living separate lives. From the court’s perspective, living at separate addresses is the easiest way to prove this. In the event that separate addresses are not possible (due to finances, children, etc.) you may reside at the same address as your spouse, and still be separated. In this type of situation, the court will require that the couple prove that while they were dwelling at the same address they no longer lived as a couple. This can be complicated and usually requires legal advice and representation.

What is a Separation Agreement?

A separation agreement is a legally binding contract created between two spouses, at the time of their separation. This contract sets out each party’s rights on issues such as: child custody/access, property, debts and child / spousal support. The law leaves the decision about having a written agreement up to each individual couple. However, it is always strongly recommended as it can be very hard to prove any verbal agreements made by a couple, in a court of law.

Ideally, it is best to have separation agreements drafted by a lawyer. It is not a rule that separation agreements must be drafted by a lawyer, and couples are entitled to draft their own agreements. Should you choose to create your own separation agreement it is important to check all your provincial requirements so that you know how to successfully write an agreement that will be binding and enforceable by the courts. It can be very difficult and costly to fight for unclear written agreements in court, should one spouse stop respecting the terms of your arrangement.

Drafting your Separation Agreement

There are many issues that need to be considered when creating a separation agreement. Separation agreements are treated seriously by the courts and any terms that are clearly unreasonable will not be accepted. It is important to note that judges will not usually change any property divisions or spousal support terms agreed to in writing, even if it is something they wouldn’t have set themselves. Due to this, it is important that you are fully educated about all your legal rights and are completely comfortable and confident before signing a separation agreement.

In the event that you and your spouse cannot agree on some or all of the items in a separation agreement, you can contact a mediator or retain separate lawyers in order to help you resolve your differences.

Important items needed in a Canadian separation agreement:

  1. Full Legal name of each spouse
  2. Date of separation
  3. Issues surrounding Children:
    • Who will they live with?
    • Who will have custody?
    • Who will have access, and how will access be determined?
    • How much child support will be paid?
    • When will child support end?
  4. Spousal support:
    • Will spousal support be paid. If so, how much, when and for how long?
    • If support is waived, is it waived forever?
  5. Property division:
    • A clear list dividing who is to get which items and when.
    • If you own a house you need to outline:
      • Will be sold?
      • Who is responsible for it until it is sold?
      • Who will live in it until it is sold?
      • How proceeds from the sale will be divided?
  6. Debts:
    • Who will be responsible for which debts?
    • How debts incurred after separation, but before divorce will be handled.
  7. Pensions, RRSPs, RESPs, etc:
    • Will you split your pensions and/or RRSPs?
    • If you have RESPs, who will be entitled to permitted transfers?

Signing a separation agreement is a very important step. It is important to remember that the decisions that you make in this document will affect you, and your children’s lives and future. A separation agreement is a binding contract that you must honour and quite often it is used as the basis for your actual divorce. It is always best to have separation agreements created by a lawyer, or at least reviewed by one before it is signed. Always ensure you carefully consider everything on the agreement before agreeing to it, and then signing.

Family, Divorce & Children

Texas does not have legal separation, so this article explains how to protect your legal rights when you are not, for whatever reason, ready to divorce.

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Can I get a legal separation instead of a divorce?

You cannot get a legal separation instead of a divorce in Texas. Texas law does not recognize legal separations. However, there are options that provide similar outcomes to what you might think of as a “legal separation.”

In Texas you can use temporary orders, protective orders, suits affecting the parent-child relationship, or separation agreements to obtain many of the same goals as someone might want in a so-called legal separation.

All of these options are similar to a legal separation because they are ways to provide visitation, financial support, and property orders without getting a divorce, or before the divorce is finalized.

What do temporary orders do?

Temporary orders can cover many things—including who gets possession of the children, who gets what property, or who has to pay what bills—while the divorce is still ongoing.

To learn more about temporary orders, read this article: Temporary Orders & Temporary Restraining Orders (TROs).

How is a protective order similar to “legal separation”?

A protective order, which is available to protect a victim of family violence, can be seen as similar to a legal separation because protective orders can dictate where children live and who has access to them. Protective orders can also determine who gets to stay in the house or who has to leave. They can also establish child and spousal support. Typically, protective orders expire after two years. To learn more about protective orders, read I need a protective order.

Do we have to get divorced to establish custody and support?

Filing a Suit Affecting the Parent-Child Relationship (SAPCR) is another legal option that can be similar in practice to a legal separation.

A SAPCR suit is a custody case that is not part of a divorce case. A SAPCR suit can be one way to gain conservatorship, possession, or access to the child. SAPCRs can be used to gain conservatorship of the child if you have never been married to the other parent.

To learn more about SAPCR cases, read (SAPCR) I need a custody order. I am the child’s parent.

What happens if my spouse and I are separated but haven’t gotten an official divorce?

If you and your spouse are separated but have not gotten a divorce there can be financial consequences, because legally you are still married. For more information on the financial obligations of marriage and divorce click here.

What is a separation agreement?

A separation agreement is basically a contract where spouses no longer live together but are not officially divorced. A separation agreement specifies the rights and duties of the parties while they are living apart. This concept is similar to a legal separation because it can set requirements for visitation, financial support, or property rights.

To form a valid separation agreement the specific terms should be in writing and signed by both parties. A separation agreement can be a cost-efficient and timely way of establishing visitation, financial, and property rights. However, this is a complicated process that should only be completed by a lawyer. Small mistakes can have grave consequences and you should hire a lawyer to write this agreement. You can use TexasLawHelp’s LegalHelp Finder to find legal help in your area.

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What Is the difference between a divorce and a legal separation?

A divorce means the marriage is legally over. Ex-spouses can marry others. The court can determine the allocation of parental responsibilities, parenting time , and child support . It can also determine spousal support and divide property.

Legal separation is a technical term. It is not the same as simply separating from one’s spouse by living apart and so on. A legal separation does not legally end a marriage. After a legal separation, spouses are still married. They cannot marry anyone else unless they divorce. A court can determine the allocation of parental responsibilities , parenting time, child support, and maintenance (spousal support). The court cannot divide property unless you and your spouse agree. You must ask the court to divide property.

If you do not think you can live with your spouse, you can file for legal separation. Obtaining a legal separation does not prevent you or your spouse from obtaining a divorce later.

What Is the difference between a legal separation and not living with my spouse?

A legal separation is different than a physical separation. Legal separation will decide questions about how much child support or maintenance should be paid.

Why would I choose a legal separation instead of a divorce?

Divorce is usually the best option for many people. However, there are situations where getting a legal separation would make the most sense. A few examples of when getting a legal separation might make sense would be:

  • You need to stay married to receive certain benefits such as health insurance, social security, and pensions;
  • You are not sure if you are ready for a divorce, but you need to be apart; or
  • Your religion prohibits divorce.

How do I get a legal separation?

To get a legal separation, you must be physically living apart from your spouse when you ask the court for a legal separation. You must then file a Petition for Legal Separation with the Circuit Clerk in your area. Ask them if they have a form you can fill out. We do not have a form for this on our site.

How long do I have to live in Illinois to get a legal separation?

You have to live in Illinois for more than 90 days.

Can I still get a Legal separation if my spouse does not live in Illinois?

Yes, you can still get a legal separation in such a situation.

If your spouse has never lived in Illinois, the court can give you a legal separation. The court may not be able to decide issues like child support and maintenance.

Can custody be decided with a legal separation?

Yes, but the children must live in Illinois for 6 months before the court can decide custody.

Where should I ask for a legal separation?

The best place to ask for a legal separation is in the county where you lived with your spouse. The next best place to ask is the county where your spouse lives.

If your spouse does not live in Illinois, you can ask for a legal separation in the county where you live.

You can begin a legal separation by filing a petition with the Circuit Court Clerk of the appropriate county. For a list of circuit courts, view the Illinois Courts website.

If you would like to file for a separation from your spouse, there are forms you must fill out and file. You can find instructions and all the forms you need to start a separation case in this section.

Make sure you understand the basic legal concepts before filling out any forms. Because separations involve many of the same things as divorces and custody cases, you should visit the Divorce Overview and Custody Overview pages for brief overview of the Nevada laws and procedures.

Step 1. Complete the Papers

To open a separation case, you will need to file all of the forms below :

Cover Sheet

This form is REQUIRED. This form asks for basic information about you, your spouse, and any children that you and your spouse have together. You are the Plaintiff and your spouse is the Defendant.

Summons

This form is REQUIRED. This form tells your spouse that you have filed for divorce. The form also tells your spouse that he or she must file a response within 20 days, or a default may be entered against them.

Complaint for Separation

This form is REQUIRED. This form tells the judge and your spouse what you want out of the separation. You are the Plaintiff and your spouse is the Defendant. You will check boxes and fill in blanks to tell the judge and your spouse things like:

  • What kind of child custody / visitation schedule you would like (if there are children)
  • How much child support should be ordered (if there are children)
  • How you would like to divide the property and debts
  • If alimony should be ordered
  • If you want to have a former name restored

Be sure to fill out all of the sections. If you leave something blank, the judge will not know what you are asking for, and it may slow down your case.

Step 2. File the Papers

After you fill out the papers above, you will need to file them with the district court in your county. Visit Find My Court if you are not sure where your local district court is located.

The court will charge you a filing fee to file your papers. The fee is different in every county. Find out from your local court what the filing fee will be.

If you cannot afford the filing fee, please see Filing Fees and Waivers to find out how to ask the court to waive the fee.

Next Step: Serve the Defendant

After you complete the steps on this page, a copy of the summons and complaint (and anything else you filed) must be hand-delivered to your spouse (the “Defendant”). The Court does not serve the papers for you. It is up to YOU to make sure your spouse gets served after you file . After you have completed the steps on this page, learn all about how to have your spouse served by visiting the How to Serve the Separation Papers page.

WARNING!

The Court does not serve the papers for you . If you do not make sure the Defendant is properly served, your case could be dismissed.

National laws in EU countries will determine the reasons you can file for divorce or legal separation, and the procedures involved. The rules vary greatly from one EU country to another.

However, a number of EU rules help determine which courts have jurisdiction and which law applies in cases involving two or more EU countries – for instance, because you and your spouse live in different countries or have different nationalities.

Where can you file for divorce or separation?

You can request a divorce or legal separation together with your partner as a joint application, or alone.

You can file your request with the courts in the country where:

  • you and your spouse live
  • you last lived together – provided one of you still lives there
  • one of you lives – provided you are filing a joint application
  • your spouse lives
  • you live, if:
    • you have lived there for at least 6 months immediately before filing
    • and you are a national of that country.

    If you are not a national, you can file only if you have lived there for at least 1 year immediately before filing.

  • both you and your spouse are nationals.

The first court where the request is filed that meets these conditions has powers to rule on your divorce.

The court with powers to transform a legal separation into a divorce is the court in the EU country that ruled on the legal separation – as long as this is in line with that country’s rules.

The court with powers to rule on divorce may also decide on issues relating to parental responsibility if the child lives in that country.

Which laws apply to your divorce or separation?

Are two or more EU countries involved – for instance because you and your spouse have different nationalities or live in an EU country other than your own?

The law that governs your divorce is not necessarily the law of the country where you file for divorce.

17 EU countries have adopted a single set of rules to determine which law should apply to cross-border divorces. These countries are: Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.

In any of these 17 countries, you can agree with your spouse to apply the divorce laws of:

  • the country where you and your spouse live
  • the country where you last lived together – if one of you still lives there
  • the country either of you is a national or
  • the country where you are filing for divorce

If you don’t agree with your spouse, courts in these 17 countries will apply the laws of:

  • the country where you and your spouse live
  • failing that, of the country where you last lived together – provided you still lived together there 1 year before going to court
  • failing that, of the country you’re both nationals of
  • failing that, the country where you are filing for divorce

If you are applying for divorce in another EU country, consult a specialised lawyer to see which laws will apply to your case and what the consequences would be.

Recognition of divorces and legal separations abroad

A divorce or a legal separation granted in one EU country is recognised automatically by other EU countries: there is no need to go through any additional procedure.

Warning

Exception – Denmark

EU rules on divorce and legal separation – for instance on jurisdiction and recognition – do not apply to Denmark.

Find out about divorce proceedings in the country relevant to you.

Choose country:

  • Austria at en
  • Belgium be en
  • Bulgaria bg en
  • Cyprus cy en
  • Denmark dk en
  • Estonia ee en
  • Finland fi en
  • France fr en
  • Germany de en
  • Greece gr en
  • Hungary hu en
  • Ireland ie en
  • Italy it en
  • Latvia lv en
  • Lithuania lt en
  • Luxembourg lu en
  • Malta mt en
  • Netherlands nl en
  • Poland pl en
  • Portugal pt en
  • Romania ro en
  • Slovakia sk en
  • Slovenia si en
  • Spain es en
  • Sweden se en

Still have questions?

Sample story

Divorce without mutual consent: jurisdiction in the country of the couple’s last common usual residence

An Irish-French married couple, Jack and Marie, lived together in Ireland.

Jack found an interesting and well-paid job in France and moved there. One month after starting to work in France, Jack decided to file for divorce in Ireland.

This was possible because the couple last lived together in Ireland and Marie was still resident there.

We get this question a lot and the answer is pretty simple. In Virginia, there is no such thing as a legal separation. One person in the marriage simply decides they want to be separated and in the court’s eyes, you are separated. There is no filing of paperwork, no procedures to follow, basically, nothing needs to happen “legally” to become separated in Virginia.

If you do decide to separate, however, you can’t go on acting like nothing has changed. You have to change your behavior and sometimes this can be tricky. While you can technically still live together, you must no longer act as husband and wife. (Read more about in-home separation) This means no more doing each other’s laundry, cooking for each other, and yes, this also means no more sex.

But, do I need an attorney to separate from my spouse?

The typical answer is no. Because there is nothing legal that needs to happen just yet, you don’t need to see a lawyer. Will talking to one of our awesome divorce lawyers make you feel a little better? Probably. It can help to answer some questions about the “unknown,” but it isn’t 100% necessary. You need to decide what is best for you and sometimes, information can help. If you have questions about the separation period, feel free to email us at [email protected] and we will be happy to help set you up with a consultation to discuss the specifics of your separation.

For immediate information, check out our blog posts about Divorce.

What Is a Legal Separation?

If you and your spouse need to start leading separate lives, but you aren’t ready or willing to consider a full divorce, then a legal separation may be a good choice for you. A legal separation is similar to a divorce; it is used to resolve issues like financial responsibilities, child custody and support, living arrangements, the division of your property, and establishes the rights of you and your spouse. Legal separation, however, does not end your marriage.

Advantages of Legal Separation Over Divorce

A legal separation can enable you to retain important benefits, such as your spouse’s medical insurance coverage, while giving you the time to repair and resume your marriage, if you wish. Because of the similarities between the two, a legal separation can also help simplify and speed up the divorce process if you decide to pursue one at a later date. Also, if your religious beliefs or personal faith are against the idea of a divorce, a long term legal separation may be a good alternative. Click here to learn more about the differences between legal separation and divorce proceedings.

How to Obtain a Legal Separation

To become legally separated, simply agreeing to live apart is not enough. A legal separation can only be granted by a judge after you submit all the required paperwork, and there may be a mandatory waiting period. It is possible you will need to appear before the judge, but in most cases you will not need to be physically present in court to get a legal separation. You also do not need to hire an expensive attorney.

Get an Affordable Legal Separation by Using The Document People

The Document People can prepare and file all the necessary forms for you without involving a lawyer. We know exactly what you will need to file, and when you will need to file it, so you will never have to worry about missing deadlines or interrupting your day to wait in line at court — many of our customers never even have to step foot inside a courthouse!

The price of this service may vary based on your individual circumstances, but it will be a fraction of the cost of hiring a lawyer. If you are ready to start the process, please contact us for a quote and for more information about how we can help.

We are truly the best option when it comes to legal separations:

  • We often come across people who have tried to do it themselves: they prepare the initial petition, fill out everything the clerk hands them and have the false satisfaction of feeling like they are accomplishing something. That only last until it’s time to file the final paperwork: that’s where 99% of people get stuck. And rejection after rejection, they get more and more frustrated with the process, and finally hire us to finish what was started sometimes years before.
  • Same goes for people who use online-only services. The only difference is that they pay hundreds of dollars to have software fill out the forms. The result is the same: they also hit the wall of the finals.
  • Let us assist you in your uncontested legal separation. We have handled literally HUNDREDS of cases this past year – we clearly know how to prepare the paperwork and word the settlement agreement between the spouses in a way that will be approved by the court.

And you’ll agree that our fees are extremely competitive.

The differences between Divorce and Legal Separation

This is one of the most common questions our customers ask us. Here is a list of the most relevant differences:

  • A legal separation will not change your marital status (you’ll still be married to your spouse, although no longer financially responsible for his/her debts – that’s why at times a legal separation it’s filed when one of the spouses has an addiction, or is about to file for bankruptcy);
  • You will not be able to remarry while you are legally separated (for the same reason listed above, you are still married – it would be a case of bigamy if you were to remarry);
  • California law requires that you live in the state for a minimum of six months to file for divorce; that is not required in case of a legal separation;
  • Legal separations take effect immediately (as soon as the judge signs off on the final paperwork), regardless of the time passed from the day the petition was served on the respondent, whereas a divorce will take a minimum of six months and one day.
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In Pennsylvania, the term “divorce” means a divorce from the bonds of matrimony. Simply put, a divorce is a legal end to the marriage when the Court issues a decree in divorce. On the other hand, a married couple can choose to live “separate and apart”. This means that there is an end to cohabitation, but the couple continues to be married to one another. In Pennsylvania, there is no legal “separation”. In other words, there is no formal process or court order required to be considered “separated” in Pennsylvania.

WHAT DOES IT MEAN TO LIVE “SEPARATE AND APART”?

Under Section 3103 of the Pennsylvania Divorce Code, the term “separate and apart” means a cessation of cohabitation, whether living in the same residence or not. While it seems counterintuitive that a married couple can live separate and apart in the same home, it is quite common. Often, one spouse is unable to get the courage to leave the home or to force the other spouse out of the home. Or, it may be financially difficult for each spouse to maintain separate households. Nevertheless, the couple may continue living separate and apart in the same home if it is established that they maintain separate bedrooms, meals are eaten apart from one another, entertaining as a couple is no longer occurring, and sexual relations have ended. This concept arose from a Pennsylvania Superior Court decision in 1984 in which the court held that “living in quarters separated physically and without sharing the incidence and attributes customarily attached to the marital relationship” are enough to constitute grounds for divorce.

No one factor is conclusive. What is important is the existence of “separate lives” and not “separate roofs”. If the parties engage in sexual relations, this does not by itself indicate that the parties resumed the marital relationship.

If a complaint in divorce is filed by one party, a presumption arises that the parties are living separate and apart not later than the date the complaint was served on the other party. This means that it shall be presumed that the parties are separated at least as of the date the complaint was filed and served.

WHAT ARE THE ADVANTAGES OF LIVING “SEPARATE AND APART”?

Oftentimes, couples do not want to proceed with a divorce because they believe that separating will give them time to reflect on the marriage. Many people believe that the time apart will allow them to decide if they really want to be with their spouse and to allow for a chance at reconciliation. There may be financial benefits too. For example, married but separated spouses are still married so they can retain the medical benefits that they have. There may be tax advantages and social security benefits too. Some people may have religious beliefs that prohibit divorce. These people can start a new life with a separation, but they are not sacrificing their religious beliefs in order to do so. Military spouses might also be able to maintain military benefits.

WHAT IS A SEPARATION AGREEMENT?

Even though there is no “legal separation” in Pennsylvania, a husband and wife who want to live separate and apart should consider a separation agreement. A separation agreement is a negotiated contract that can define with specificity the rights and responsibilities of each spouse while they are separated. These agreements involve a lot of legal issues so separating spouses should retain a divorce lawyer to help them create a separation agreement. Often, these separation agreements can then serve as the basis for a final settlement agreement for the divorce. A Court can enforce a separation agreement just like any other contract, so it is binding on each party. The following is a few examples of what a good separation agreement will cover:

    Division of Property . A big issue that often arises when a couple has decided to live separate and apart is whether they will live in a separate household. If the decision is made to live in a separate household, the couple should discuss how each of them will pay for their respective living situations. For example, if one spouse moves out of the marital home, will that spouse continue contributing to the mortgage, interest, and taxes on the marital home even though he or she will have their own living expenses? The parties must also determine who gets the personal property, i.e. household belongings, cars, etc. These are just some of the property issues that must be discussed and addressed in a separation agreement. Pennsylvania divorce lawyers are important in this regard because they can help their client understand the issues and the legal impact of decisions so the lawyer can then incorporate these decisions in the agreement.

Alimony Pendente Lite (APL) and Spousal Support . In Pennsylvania, a spouse may be entitled to Alimony Pendente Lite if the parties have commenced the divorce process or spousal support if they have not commenced the divorce process. They cannot get both. There are some important distinctions between APL and spousal support and a divorce lawyer can help the client understand those distinctions. A divorce lawyer can also help the client determine an appropriate amount of APL or spousal support based on the incomes of the parties and other variables.

  • Child Custody and Visitation . Parties who get divorced and who have young children should determine who gets physical and legal custody of the children. Usually the parties to a divorce will create a schedule for custody and visitation. Parties who are separating should also consider having a similar agreement. The schedule for child custody and visitation can be incorporated into a separation agreement that can include holidays, birthdays, and vacations.
  • How to file for separation

    IS SEPARATION RELEVANT TO A DIVORCE PROCEEDING?

    In order to receive a decree in divorce from the Court, there must be “grounds for divorce”. Living separate and apart is a necessary element of a unilateral no fault divorce under Section 3301(d) of the Pennsylvania Divorce Code. In these cases, the spouse who wants the divorce must file a divorce complaint and he or she must allege an “irretrievable breakdown” of the marriage. When the spouse can prove that the parties have continuously lived separate and apart for at least one-year, the Court may grant the decree in divorce even without the consent of the other spouse.

    UNILATERAL DIVORCE – SEPARATE AND APART

    If a spouse files a divorce complaint and alleges an irretrievable breakdown of the marriage under Pennsylvania law, that spouse can allege the parties have lived separate and apart since a specific date. If the other spouse does not believe that the marriage is irretrievably broken or if he or she does not believe the parties have lived separate and apart, then the spouse can file a counter-affidavit. When a counter-affidavit is filed, the matter will be decided by the Court after an evidentiary hearing. The spouses should each have an experienced divorce lawyer present their case.

    How to file for separation

    In Nevada, if you wish to dissolve a marriage, there are two options for you:

    1. File a divorce. This is the cleanest option, the one that permanently dissolves the marriage.
    2. Legal separation. If you object to divorce on moral or other grounds, or rely on your spouse for health insurance, your option is to remain married, but legally separate your assets, as well as address child support and visitation through an action for separate maintenance, as it is formally referred to in Nevada, but commonly known as a legal separation.

    If you wish to protect yourself from the financial obligations entered into by your spouse after a separation, and you either object to divorce, or you want to take some time before filing one, or one of you must remain on the other’s health insurance, a legal separation is your best option.

    If a divorce is filed later, the terms of your legal separation can be incorporated into the Decree of Divorce, or you can make new terms.

    Essentially, a legal separation addresses all issues normally addressed in a divorce. The only thing it doesn’t do is permanently dissolve the marriage. In other words, all of your property is divided and all issues regarding any children you might have with your spouse are addressed, but you are still married. Neither of you can marry anyone else.

    Issues commonly addressed in a legal separation:

    • Spousal support
    • Child support.
    • Possession of community property and debt.
    • Division of community property and debt.
    • How future income will be handled.
    • How future property bought by either party after the separation will be handled.
    • How future debt entered into by either party after the separation will be handled.
    • Disclosure and modification provisions.
    • Relationship to divorce decree and reconciliation.
    • How the parties will file taxes and who will be responsible for payment of taxes.
    • Who will be responsible for the attorney fees.
    • How your estate will be managed.

    Before filing a divorce, which dissolves the marriage completely, especially when you have minor children, it is often wise to consider filing a legal separation first as a way to test if you really do wish to end the marriage.

    Below are some circumstances and conditions under which you should look at legal separation instead of divorce:

    • Are you an older couple where medical insurance and spousal benefits are important?
    • Do you have younger children together and wish to cause them minimal trauma? It might be less difficult for them to hear “mommy and daddy are getting separated” instead of “mommy and daddy are getting divorced.”
    • Are you uncertain about forever dissolving your marriage? A trial separation could give you better insight into whether you wish to permanently dissolve your marriage through a divorce.
    • Are you in a long-term marriage? Have you considered the cost and consequences of unwinding the community property? Is it worth the attorney fees, appraisal costs, and expert fees?

    Oftentimes, a separate maintenance has a clause that indicates that in the event the parties divorce after the legal separation has been granted, the obligations, duties, rights and responsibilities contained in the decree of separate maintenance (legal separation) will be incorporated by reference into the decree of divorce. It’s wise to do this since not having this clause in your legal separation could add to the cost of your divorce (if you ultimately decide to take this route) where all the issues would have to be re-entered in the final decree of divorce, instead of the decree of separate maintenance being incorporated into the divorce.

    You are free to include any provisions in your legal separation as long as they are in compliance in with the law and not against public policy. For example, in Nevada, parties to a divorce or legal separation cannot agree to lump sum child support because the Supreme Court has ruled against it.

    If you and your spouse reconcile after a legal separation filing and after the decree has been granted, the decree of legal separation will be terminated. If you separate again, you will have to file a new legal separation, unless the first decree contained a provision that the first decree of legal separation will continue in full force if you reconcile then separate again.

    Many couples in Oregon consider legal separation vs. divorce. For some spouses, they may not be able to legally file for divorce because they haven’t met the Oregon residency requirement. For other spouses, they may still be trying to save the marriage, or they are not yet ready to call it quits.

    How to file for separationLegal separation is an alternative to divorce for some couples in Oregon.

    Why Consider Legal Separation?

    • Personal reasons: Religious beliefs against divorce, or social reasons such as the embarrassment of a failed marriage or stigma that comes with a divorce.
    • Legal reasons: You must live in Oregon for six months prior to filing for divorce. Therefore, if you have not lived in the state long-enough, you may need to consider legal separation.
    • Financial reasons: Perhaps you can’t afford a divorce. You may need to remain married to retain health insurance or retirement benefits. In this situation, consult with an attorney before assuming the benefits will continue during a physical or legal separation.
    • Lastly, you may have philosophical, psychological, or moral reasons for not filing for divorce. Maybe you’re not ready to thrown in the towel yet. You want to give the relationship every possible chance for success. Perhaps you just need a little space from your spouse, a cooling off period, and some couple’s counseling.

    Legal Separation Process in Oregon

    The process for legal separation in Oregon is nearly identical to that of a dissolution of marriage (the technical name for divorce in Oregon). Plans for child custody, child and spousal support, and property division (both assets and debts) can be put in place. Legal separation is best in situations where both parties agree to a separation. Because Oregon is a no-fault divorce state, either party who’d prefer a divorce to a legal separation can convert a legal separation proceeding into a divorce.

    In order to have a legally-enforceable separation in Oregon, a petition must be filed with the local county court. A judgment must then be entered. The judgment of separation leaves an otherwise valid marriage in-tact, but allows the parties to live apart. The judgment may divide the parties’ property, determine who owes which debts, establish a parenting plan if there are children, and determine spousal and child support.

    One major drawback of a legal separation is that the terms of a separation judgment are not finalized as they can be in a divorce, and on-going legal, financial, or personal problems can continue in legal separations. An attorney can help you determine whether a legal separation is appropriate in your situation.

    If the parties want to convert the legal separation to a divorce, that can be done by motion within two years of the date following separation.

    Legal Separation Agreements in Oregon

    If you need court protection concerning your children, financial support, protection from your spouse’s debts, and property issues, a legal separation agreement can help. These detailed agreements should be drafted by a lawyer and filed with the court in the county in which one of the parties resides. They can be very specific, and provide peace of mind so that you and your spouse can live separate lives for a period of time.

    “Does legal separation protect me financially?”

    It can, if your separation agreement is detailed and legally-enforceable. However, it’s important to note that separation does not change your underlying status or obligations with regard to debts previously acquired. Meaning, if you and your spouse are jointly on a home loan, you ultimately both still have to pay that home loan. A legal separation agreement can require that only one spouse pay it, but if the spouse ordered to pay it fails to do so, the mortgage lender will still have the ability to enforce the debt against both spouses. Because of the separation agreement, the spouse who was required to pay may be held in contempt, owe attorney’s fees, and face other sanctions, but the legal separation agreement does not completely terminate the obligation of a debtor to ultimately pay a debt. This is why a detailed and legally enforceable separation agreement should not simply be scribbled on a piece of notebook paper or downloaded randomly off the Internet

    “Can you date or remarry while legally separated?”

    A surprising number of people ask this question. Some couples– while legally separated– want a trial period to possibly see other people. Other couples might be legally separated for a long period of time and naturally begin other relationships.

    You can date. But you can’t remarry. Marrying another person while you’re still married is called “bigamy” and it’s actually a felony. If you intend to marry, you’ll first need a divorce.

    Questions about Legal Separation

    If you are considering legal separation vs. divorce, contact our office. We handle Oregon divorce and family law cases, and we can set up a consultation to discuss all of your options.

    Read our legal information about COVID-19 coronavirus.

    Separation is when you and your partner stop living together in a domestic or marriage-like relationship.

    Your partner does not have to agree to the separation, however they need to know that you think the relationship is over. There are no legal processes to become separated.

    Divorce is the official ending of marriage. You must satisfy the court that:

    • you and your spouse have been separated and lived apart for at least 12 months
    • there is no chance of reconciling your marriage.

    Annulment happens when a judge decides that there was no legal marriage.

    Getting a divorce or having a marriage annulled does not sort out issues relating to children or property. These arrangements must be made separately. You do not need to be divorced or to have had your marriage annulled in order to make these arrangements. For more information see Parenting arrangements and child contact.

    The law encourages you to try to sort out your issues using family dispute resolution. If you cannot agree on arrangements about property or children, you may end up going to court.

    Laws about division of property and financial maintenance apply to married couples and to de facto and same-sex relationships that ended after 1 March 2009.

    After making the decision to split, many women wonder how to file for a legal separation and what needs to be included in the separation agreement. Before you get started, you need to understand that a separation agreement is a legally binding contract. Therefore, you should put just as much thought into your legal separation as you would any divorce agreements.

    Most importantly, not all states have laws specifically addressing the concept of a legal separation. The states which don’t acknowledge legal separation are Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas.

    If you live in one of these states, getting an ante-nuptial or post-nuptial agreement can help spell out many of the same provisions (you can also read Can You Get a Legal Separation in TX).

    Since state laws differ in regards on how to file for a legal separation, it’s a good idea to consult a lawyer about your specific situation. To get the process started, you will first need to meet your state’s residency requirements as they relate to separation and divorce issues. If you have lived in the state long enough to meet the residency requirements, you will first need to file a petition for a legal separation. You can either retain a lawyer to handle this for you, or you can fill out your own separation agreement using online resources or those provided by state court websites.

    To be sure that all your bases are covered, your separation agreement should contain provisions for the division of property and liability for debts, address how child custody and visitation will be handled, set the amount of temporary child support or alimony to be paid, and any other details that need to be worked out.

    Once all the necessary paperwork is filled out, the petition will need to be served on your husband, unless both of you are filing jointly. After your husband is served with the petition, he will need to respond within a certain period of time. If both parties agree to the provisions of the separation agreement, all that is needed is the notarized signatures of both spouses so that it can be presented to the court for approval.

    If one spouse doesn’t agree with the provisions, a counter-petition can be filed. At this stage, it is best to work out disagreements privately, or with the use of a mediator. If an agreement can’t be reached, the matter will need to go before a judge to settle everything.

    Once everything is settled, the parties need to sign the separation agreement so that it can be submitted to a judge for review and signing. The final document will then be filed with the county clerk. At this time, you should request official copies for both you and your spouse. It’s important to note that in many states, it is possible to convert a legal into a divorce decree at a later time. Since there are time limits in some states, you should contact a lawyer to find out what the specifics are in your state.

    Keep reading for more information on how to file for a legal separation and understanding what your rights are:

    How to file for separation

    For some couples who are facing marital concerns, legal separation is a better fit than divorce. If you are one of these couples, the experienced family law attorneys at Johnson Law Group are prepared to skillfully guide you regarding how to file for legal separation in Colorado. Some couples choose to legally separate rather than seeking a divorce, and the Colorado Judicial Branch explains that mechanism that exists for obtaining a legal separation. Whether you are taking a break, attempting to work out your differences, or are avoiding divorce on religious grounds, the dedicated family law attorneys at Johnson Law Group can help you address the matter of how to file for legal separation in Colorado at (720) 730-4558 (text) or (720)-463-4333 (phone).

    Divorce vs. Legal Separation

    Divorce is a legal contract, and the only way to end that contract is with a legal divorce. With a divorce, you and your spouse must make legal determinations including the following:

    • Your child custody arrangements (called parental responsibilities and parenting time under the Colorado Revised Statutes)
    • Child support
    • Spousal maintenance (or alimony)
    • The division of the marital estate (or the division of your marital property)

    If you are unable to find common ground on any one or more of these terms, the court will do so for you. In a separation, the same terms need to be addressed, and they will guide how you and your spouse move forward into your legal separation. The primary distinction between a divorce and a legal separation in Colorado is that while a divorce terminates your marriage contract, a legal separation does not. If you obtain a legal separation, you remain married to your spouse and are not free to remarry (unless you move forward with the process of converting your separation into a divorce).

    Common Reasons for Choosing Legal Separation

    Every marriage, divorce, and legal separation is as unique as the people and circumstances involved, but there are common themes that often guide a couple’s decision to explore how to file for legal separation in Colorado rather than a divorce, including:

    • Using the separation to better understand what divorce would mean for them (rather than committing to a divorce from the outset)
    • Maintaining medical insurance or preserving other specific employment-based benefits (including military benefits) that would be lost with divorce
    • Ensuring that federal tax benefits for married couples continue to apply
    • Avoiding the social or religious stigma that some communities and/or couples attach to divorce
    • To make the transition toward divorce easier on their shared children

    In other words, couples have a variety of emotional, financial, and practical reasons why they may choose a legal separation over divorce, and if you would like to learn more, the dedicated Colorado family law attorneys at Johnson Law Group are here to help answer your questions and ensure your rights remain protected.

    Filing for Separation in Colorado

    Filing for a legal separation in Colorado is nearly identical to filing for a divorce, and the steps include:

    • You and your spouse will file a petition (or a request) for a legal separation with the court.
    • Either you or your spouse must meet the residency requirement of the state, which means having lived in the state for at least 91 days prior to filing for your legal separation.
    • Just as you would if you were seeking a divorce, you will need to include a reason for your legal separation, which – because Colorado is a no-fault state – can be that your marriage is (as it stands) irretrievably broken with no current chance of reconciliation.
    • From here, there is a 90-day waiting period before the court can act on your separation request.

    The 90-Day Waiting Period

    The idea behind the 90-day waiting period is for you and your spouse to resolve the terms of your separation, which will allow you to bypass the court’s intervention and to retain decision-making power on these very personal and important matters.

    Your Child Custody Arrangements

    As mentioned, the State of Colorado breaks what you likely think of as child custody into parental responsibilities and parenting time. Parental responsibilities relate to who will be making important, big-picture decisions on behalf of your children, and these responsibilities can be taken on by one of you, can be shared, can be shared while one of you retains tie-breaking authority, can be fielded by only one of you, or can be divided according to the topic at hand. The kinds of decisions involved include those related to:

    • Your children’s schooling
    • Your children’s religious upbringing
    • Your children’s extracurricular activities
    • Your children’s health care

    Parenting time determines how you and your spouse will split your time with your children, and you can either divide your time somewhat equally or one of you can take on the role of a primary custodial parent while the other has a visitation schedule.

    Child Support

    Child support is calculated according to Colorado’s state guidelines, and while many factors are considered, the two that are most significant include each parent’s income relative to the others and the number of overnights each parent has.

    Alimony

    Only if one of you will experience a significant financial downturn upon separation while the other has the financial means to address this downturn will alimony play a role.

    The Division of Your Marital Estate

    Those assets that you acquired as a married couple (over the years of your marriage) are considered marital assets, and in the State of Colorado, they must be divided between you equitably (or fairly given the unique circumstances of your unique marriage).

    Reach out to an Experienced Colorado Family Law Attorney Today

    The experienced family law attorneys at Johnson Law Group are here to help you skillfully address your concerns as they relate to how to file for legal separation in Colorado. For some couples, a legal separation is a better choice than divorce, and we are committed to helping you explore your options. For more information, please do not wait to text us at (720) 730-4558 or call us at (720) 463-4333 today.

    How to File for Legal Separation in Maryland

    Legal separation does not exist in Maryland. However, Maryland law provides for limited divorce. This is a legal procedure similar to legal separation offered in other states. Some couples that are having marital troubles might not be ready for a divorce. But they do want to try a separation. If you’re in this situation and you live in Maryland, limited divorce might be for you.

    How to file for separation

    1. Make sure you meet the criteria.

    If you’ve made the decision to move forward with this legal action rather than proceeding with a divorce, there are certain criteria you must meet. To file for a limited divorce, you must first be able to prove that you have lived in Maryland for at least the previous 12 months. You must also be able to show that you and your spouse have been living separately.

    You also need to have grounds for the limited divorce. Maryland allows for the following grounds:

    • Voluntary and mutual separation
    • Cruel treatment
    • Excessively vicious conduct
    • Desertion

    2. Complete and file the Maryland limited divorce form.

    Your next step is to complete the Maryland Complaint for Limited Divorce form. You need to have ready your grounds for seeking a limited divorce, where your spouse is living, and where your children live if you have any.

    Once your form is completed, make a copy for yourself and file the original. You need to file this form with the clerk’s office in the county where you live. The clerk requires a filing fee, but you may be able to apply for a filing fee waiver.

    3. Prepare for mediation and a separation agreement.

    Maryland does not require mediation, but it is a good step to take. If you and your spouse can resolve your dispute outside of the courtroom, not only will it save you time, it will also save you a great deal of money.

    If you and your spouse can agree to terms during mediation, the mediator prepares a separation agreement. This document lays out the terms of your separation and provides for how your assets and time sharing responsibilities with your children should be divided. Once you’ve both signed the separation agreement, you can bring it to your hearing and the judge signs off on it.

    4. Attend the hearing.

    All limited divorces in Maryland must have a final hearing. This is where you receive your limited divorce decree.

    If there are disputes about assets or custody of children, the judge attempts to resolve these issues during this hearing. But if you have attended mediation and agreed to terms in a separation agreement, the judge reviews the agreement and sign off on the terms. This can greatly reduce the time you spend in the courtroom and the costs associated with your limited divorce.

    If you have religious objections to divorce or if you think you might want to give your marriage another shot, a Maryland limited divorce might be the right option for you. Following these steps will help to make sure your limited divorce goes as smoothly as possible.

    This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.