Separate Maintenance and Legal Separation

Learn about separate maintenance, a type of alimony for separated couples.

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Typically, when married couples believe that their marriage can no longer be saved, they choose to file for divorce. However, couples that want a break to work on their marriage and those who are opposed to divorce have the option to separate. "Separate maintenance" (which is very similar to alimony) is a way for one spouse to continue to support the other before, during and after a legal separation.

Legal Separation Doesn’t Involve Divorce

Almost all married couples have arguments. Some, however, experience so many arguments that they become the norm rather than the exception; these fights may be the result of or a symptom of serious marital problems. Some couples go to counseling, others try to work out their problems on their own, and some decide that it's best to work on their issues while one spouse is living outside of the family home.

The separation may be for a specific time or long-term. For example, a "trial separation" is when married couples separate for a couples months or take a break, ususally with the intention of reconciling. Thus, a trial separation doesn't typically involve laywers or court appearances.

However, once one spouse (or both) decides that there is no chance of getting back together, it's safe to say the marriage is over. Although legal separation is not very common, it can be used in cases where the couple is opposed to divorce for a variety of reasons, including religious reasons (where the couple's church does not permit divorce), or because the couple wishes to continue receiving benefits that married couples receive (health or tax benefits).  If you're choosing a separation over divorce to continue receiving benefits, it's important to determine whether a legal separation will trigger termination of the particular benefit.

Whatever the reason, if a couple wants to "end" their union, but avoid a divorce, they can seek to have their separation officially recognized by a court. In order to do so, they will need to obtain a "legal separation" through a court process that is very similar to divorce, but which does not completely break the bonds of marriage. Married couples that want to legally separate must agree how to divide property and debts. And if they have children, they need to work out their child custody and support issues. However, when couples can’t agree, a judge will impose a decision on all of those martial issues. What a judge won’t do is issue a divorce decree. Thus, you and your spouse will remain married and you are not free to remarry unless and until you obtain a divorce.

Separate Maintenance is Financial Support From One Spouse to Another

Most people associate "separate maintenance" or alimony with divorce. However, it is possible to obtain separate maintenance with a legal separation. Separate maintenance is similar to alimony or spousal support, but it's not called alimony because the couple is still legally married. The factors used to determine separate maintenance are similar to those for determining alimony, and will depend entirely on the laws of your state.

The basic idea is that one spouse may need financial support after a legal separation due to a lower earning capacity. If so, the higher-earning spouse will have to provide support for at least some period of time: the amount and duration of the payments will depend on the spouses' incomes, earning abilities, ages, the length of the marriage, and a variety of other state-specific factors.

Obtain Legal Assistance about Separation Maintenance and Legal Separation

If you and your spouse decide that your marriage should end in a legal separation, contact a lawyer. A lawyer who specializes in divorce and legal separation can help you with child custody and support, the division of property and debts, and determining the proper amount and duration of separate maintenance. Also, a lawyer can assist you turn a legal separation into a divorce—if needed.

Updated by: Tomek Pilch

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