Separate Maintenance and Legal Separation

Courts in many states will order one spouse to pay the other “separate maintenance” when the spouses are legally separated.

By , Attorney

In most cases, when a couple recognizes that the marriage is over, one or both spouses will file for divorce. However, there might be another option for married couples who want to separate but don't want a divorce: legal separation. By filing for legal separation (known as a "separate maintenance action" in some states), spouses can get a court order regarding many of the same issues that would be decided in a divorce—including spousal support—without actually ending the marriage.

What Is a Legal Separation?

Legal separation is one of the different types of separation that spouses can choose as an alternative to divorce. Many of the rules that apply to divorces also apply to legal separations. For example, couples must meet state residency requirements in order to file for legal separation, and—in most states—the grounds for legal separation are the same as the grounds for divorce.

Being legally separated is very similar to being divorced, except that you are still married and can't marry someone else. Just like a divorce decree, when a judge grants a petition for legal separation, the legal separation order (or "decree") will often include specific terms about the rights and responsibilities of each spouse, such as how the couple will divide property and support their children. Often, legal separation orders also address whether one of the spouses is entitled to financial support from the other.

People choose legal separation as an alternative to divorce for a myriad of reasons: They might be against divorce for moral or religious reasons, they might want to keep the family together for the children's sake, or they might need to maintain health insurance benefits that would be lost in a divorce. (If you're choosing to legally separate rather than divorce so that you can continue receiving insurance benefits, be sure to check the plan before making a decision—some plans treat legal separation the same as divorce.)

How Long Does a Legal Separation Last?

In most states that recognize legal separations, spouses can remain legally separated for as long as they wish. In some states, though, the legal separation order must state how long the separation will last. For example, in Oregon, the legal separation order (called a "judgment of separation") must state whether the separation is unlimited or has an expiration date. (Ore. Rev. Stat. Ann. § 107.475 (2021).)

Legally separating from your spouse now will not prevent you from getting a divorce later if you decide that's the right thing for your relationship. Your state's laws might require you to remain separated for a period of time before you can file for divorce or before the court can grant a divorce, though, so check your state laws about any "separate and apart" requirements before you file.

Can I Get Alimony During a Legal Separation?

Financial support given to one spouse when the couple is legally separated is called "separate maintenance." Although it is similar to alimony—financial support given by one ex-spouse to the other after divorce—it is not called "alimony" because the couple is still legally married.

When couples legally separate, it's common for one of the spouses to have a lower earning potential than the other. The goal of most separate maintenance awards is to help the financially dependent spouse become financially independent. Judges in most states determine separate maintenance amounts using factors similar to the ones they use to determine alimony. Specifically, the amount and duration of maintenance will depend on:

  • the spouses' incomes
  • each spouse's earning ability
  • the age of each spouse
  • the health of each spouse
  • the length of the marriage, and
  • any other factors required by state law.

Judges who award separate maintenance often provide the details of the award in a "separate maintenance decree" or "separate maintenance order."

Enforcing a Separate Maintenance Order

Once a judge has issued a separate maintenance order, both spouses are bound by it, and either spouse can enforce its terms.

If your spouse refuses to make payments required by the order, you can file an enforcement action with the court. An "Order to Show Cause" or "Contempt Action" notifies the judge that your spouse isn't following the terms of the separate maintenance order. A judge who finds that your spouse is in contempt can impose fines, sanctions, or even jail time on your spouse.

How Does Later Filing for Divorce Affect a Separate Maintenance Decree?

After a period of legal separation, many spouses decide to fully end their marriage by divorcing. Alternatively, if your legal separation order has an expiration date, you will need to decide whether to ask the court to extend the separation or file for divorce.

In most cases, your separate maintenance order will stay in place until the divorce is final—but be sure to confirm with the court that this is true for your situation. Also, when you or your spouse file for divorce, you can request that the court enter temporary orders regarding spousal support. Often, judges will simply extend the support awarded during separation.

If you and your spouse are able to agree on the terms of your divorce—either by using the decree of separation or negotiating the terms based on your experiences during separation—you will be able to file an uncontested divorce. Uncontested divorces are typically faster and less expensive than contested divorces, and you might even be able to DIY the paperwork. As long as you and your spouse are happy with the arrangements you had during your legal separation, you can use them to create a marital settlement agreement to submit to the judge.

If you don't agree on the terms of your divorce, you could try mediation, in which a neutral third party called a mediator guides your discussions and helps the spouses draft a marital settlement agreement. If mediation fails, you can ask the judge to resolve any remaining issues.

In a divorce, the judge doesn't have to award support in the same amount that was awarded under a separate maintenance decree. Unless circumstances have changed significantly, though, it's likely that any alimony award will be similar to separate maintenance.

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