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.

Updated by , Attorney

Most of the time, 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 Legal Separation?

In general, there are three types of separation:

  • trial
  • permanent, and
  • legal.

To enter into a trial or permanent separation, you typically don't have to go to court—instead, the separation is a matter of agreement between you and your spouse. It's common for spouses to choose a trial or permanent separation when they're trying to work out their issues or have decided to live apart in preparation for filing for divorce.

Legal separation, on the other hand, is often an alternative to divorce, and requires court action. In states that offer legal separation (not all do), you can legally separate from your spouse by filing a petition (request) in family court.

Many of the procedural 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. Likewise, 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 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.

Advantages and Disadvantages of Legal Separation

People choose legal separation instead of divorce for a myriad of reasons: They might be against divorce on moral or religious grounds, 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.)

When weighing divorce versus legal separation, there are some disadvantages to legal separation that might be deal breakers. Clearly, legal separation probably isn't the right choice if you would like to remarry. Also, if you're in an abusive situation, you might decide that you want to sever all ties with your spouse—which won't be possible with a legal separation. For example, for tax purposes, you and your spouse are still married, so a degree of cooperation will be necessary.

What Is Separate Maintenance or Alimony in 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 usually 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. (Enforcement of separate maintenance orders is often very similar to enforcement of alimony orders.) 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 Much Does It Cost to Get a Legal Separation?

The costs of getting a legal separation are comparable to the costs of getting a divorce. As with a divorce, you can reduce your expenses by having a written agreement about the issues—such as child custody, property division, and other financial matters—rather than hashing them out in court. Mediation can be a cost-effective way to reduce your overall costs if you're finding you and your spouse don't see eye-to-eye on certain issues. When you're able to agree on the issues about the separation, you might be able to handle the separation paperwork yourself and avoid having to hire an attorney.

Also, all courts charge fees (usually ranging from $150 to $400) for filing legal separation paperwork. These fees differ from court to court, so contact your local court clerk to find out the current amount being charged. If you can't afford the filing fees, ask the clerk if there's an application to waive court fees and costs based on financial need.

How Long Does It Take to Get a Legal Separation?

In general, you can expect the legal separation process to last as long as the divorce process would.

Some states require a minimum waiting period before the court can enter the decree of legal separation. For example, courts in Colorado can't enter a decree of legal separation until 91 days or more have elapsed since the non-filing spouse either answered or joined in the petition. (Colo. Rev. Stat. § 14-10-106 (2022).)

If your state doesn't have a waiting period, the court can enter the decree of legal separation as soon as all the issues in the separation have been decided. So, just like a divorce, if you and your spouse have a written settlement agreement, the decree can be entered as soon as the court's calendar allows. However, if the court must decide the issues in your separation, the process could take months or even a year or more.

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. (Or. Rev. Stat. § 107.475 (2022).)

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.

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 alimony in the same amount that was awarded under a separate maintenance decree. Unless circumstances have changed significantly, though, it's likely that any spousal support award will be similar to separate maintenance.

Do You Need a Lawyer for a Legal Separation or to Get Maintenance?

No court requires you to have a lawyer to get a legal separation. If you and your spouse have drafted your own separation agreement, you can DIY the paperwork and represent yourself in court if the judge requires any hearings. And, if you just need some help with getting the paperwork together, consider consulting with an attorney on a limited basis.

However, if your spouse already has a lawyer, it's almost always in your best interests to hire one yourself—unrepresented parties are usually at a disadvantage against represented parties. Or, if you and your spouse disagree on any of the issues—including maintenance—in your separation, consider hiring a lawyer to help with negotiations. If you think you might be able to work things out, hiring a mediator (even if you're working with an attorney) could help save money and get you a faster result.

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