A legal separation lets you live apart, divide finances, and settle custody and support—without ending the marriage. Learn how it works and whether you need one.
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 can't 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 "divorce from bed and board." A minority of states require spouses to live separate and apart for a set period before a divorce can be granted. That period, and whether it must be a court-ordered legal separation or simply living apart, varies by state and can change over time, so check your state's current divorce statute or your local court's self-help resources for a specific timeframe.
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), covering alimony, child custody, child support, and property division. However, a separation agreement on its own is a private contract, not a court order. If one spouse violates it, the other spouse would typically have to sue for breach of contract rather than ask a judge to hold the violating spouse in contempt of court. To get contempt-backed enforcement, spouses must have their agreement approved and incorporated into a court order.
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. These orders remain in effect until the court modifies them or the couple reconciles or divorces. However, the spouses will remain legally married and can't 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 family 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 to legally separate rather than divorce because their religious beliefs prohibit divorce. Other couples consider a legal separation to be a cooling-off period, which can bring some stability to a rocky marriage while the spouses decide whether to reconcile or pursue a divorce.
Whatever the reason, a legal separation offers the practical advantage of giving both spouses a court order they can enforce if the other doesn't follow through on support obligations. For example, if one spouse fails to pay child support or alimony ordered in the separation judgment, the recipient spouse can go back to court and ask a judge to hold the non-paying spouse in contempt, which can mean fines, penalties, or even jail time. Without a legal separation, or a separation agreement that's been incorporated into a court order, there's no contempt remedy available. Instead, the recipient spouse would have to pursue a breach of contract claim to try to recover the missed payments.
Do You Need a Lawyer for a Legal Separation?
If your spouse is asking you to sign a separation agreement, you should have your own divorce lawyer review the terms first. The agreement can affect your rights to support, property, and custody for months or years. And if you're the one initiating the legal separation, a lawyer can help you draft an agreement that protects your rights both during the separation and if the marriage ends in divorce.
