You and your spouse may simply decide to live apart, either as a trial separation or because you're planning to get divorced. But this type of informal separation is not the same thing as a legal separation. A short trial separation has no legal ramifications. If you separate and don't plan on getting back together, that could affect the property division in your later divorce, or when one of you might be responsible for paying temporary child support or alimony.
By contrast, a legal separation is quite different than both of these scenarios. A legal separation is a formal legal procedure that allows the court to make some of the same kinds of orders as in a divorce. There are situations where you may want to avoid a legal separation, so it's best to consult a local family law attorney for advice.
How is a Legal Separation Different from a Divorce?
A legal separation is an alternative to divorce. While a divorce permanently ends the marital relationship, a legal separation leaves your marriage in place. But just like in a divorce, with a legal separation, you can ask the court to divide property and debts, and resolve custody, support, and alimony issues. During your legal separation, you and your spouse are still legally husband and wife, which entitles you to certain protections and benefits.
What are the Benefits of a Legal Separation?
Couples have different reasons for legally separating. Some couples choose legal separation over divorce for religious reasons. Other couples choose legal separation in an attempt to keep certain benefits, such as health insurance coverage, that might be lost with divorce. Talk to your insurance provider before you make this decision. Many health plans treat legal separation the same as divorce and will terminate benefits for the non-policyholder spouse. A lawyer can help you decide whether a legal separation or divorce is the right path for you.
Can I Obtain a Legal Separation?
If you live in a state that allows legal separations, you may be able to get one. Similar to a divorce, you'll need to meet certain residency requirements to qualify for a legal separation. You’ll also need to file and serve separation paperwork, which is almost identical to the divorce petition paperwork. The process is relatively simple if you and your spouse can agree on the terms of your legal separation.
In most states, a legal separation is for a limited amount of time. For example, in Utah, couples can have a legal separation that lasts for up to one year. After that time period, any legal recognition of the separation (including alimony or support orders) will need to be revisited and can be made part of a final divorce order.
How Will a Legal Separation Affect My Tax Status?
One of the most complicated areas of legal separation is the tax consequences. Many couples hope to stay married—although separated—as a way to continue to file taxes jointly. However, depending on the particular laws of your state, if you're legally separated, you may be required to file taxes as a single person. If you have questions about how a legal separation will affect your taxes, you should contact a CPA, accountant, or other tax expert for advice.
Questions for Your Attorney
- My spouse and I have been married less than a year and want to get a legal separation. Have we been married long enough to qualify?
- I definitely want to divorce my husband. Is there any reason I should consider getting a legal separation before seeking a divorce?
- My spouse and I live in different states. Where should I file for a legal separation?