Rights During Legal Separation

Updated by , Attorney · UC Law San Francisco
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Legal separation is a legal proceeding (very similar to a divorce) through which a married couple petitions (asks) a court to allow them to live separate and apart and end any marital obligations to one another. The only difference is that the couple is still technically married - that is, they have not ended their marital status and cannot remarry unless they get divorced.

Legal separation has different names depending upon the state you live in; it is also referred to as a "limited divorce," "judicial separation," or a "separation from bed and board." In some state, spouses must actually become legally separated before they can obtain a divorce. The length of time required for a legal separation is usually between 6 months to 2 years, but this varies, depending on each state's laws.

In jurisdictions without the right to a legal separation, the spouses could simply live apart and enter into a written separation agreement (signed by both spouses), which would have the same effect.

What Rights do Spouses Have During Separation?

In a legal separation proceeding, a court can decide matters such as child custody and support, alimony and property division. However, as stated above, the spouses will remain legally married and cannot remarry unless and until they get a divorce.

Some of the most common issues that come up between separating couples include:

  • whether one spouse is entitled to temporary alimony
  • how much child support payments should be, if there are minor children
  • rights to the family home, including whether either spouse may have the right to remain in the marital home during the separation and who will pay for the mortgage, and
  • which debts each spouse is required to pay.

Do You Need a Legal Separation?

Some couples choose a legal separation because their religious beliefs prohibit divorce. Other couples consider a legal separation to be a "cooling-off period" in a troubled marriage. Whatever the reason, a separation has the advantage of providing a legal framework for both parties in the event one does not follow the terms of an agreement or obligations to pay support. For example, if one spouse fails to pay child support and alimony, the separation judgment and order(s) will give the recipient spouse some remedy to have the orders enforced in court - this means that a judge can force the delinquent spouse to pay. If there is no legal separation, or separation agreement followed by a court order, there is no way to enforce the overdue payments. With a legal separation or separation orders, the spouse that fails to pay can be held in contempt for violating the order - contempt may result in fines, penalties and even jail time. A legal separation may also bring some stability to a rocky relationship, while the spouses try to figure out whether they will stay in the marriage or pursue a divorce.

Do you need a lawyer?

If you are being asked to sign a separation agreement, you definitely need legal counsel regarding the terms of the agreement and how it affects your rights. Never sign a legal document without appropriate legal advice. If you are seeking a legal separation, an experienced family law attorney can help you protect your rights before and after you become legally separated.

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