When a couple separates, they have chosen to live apart and no longer share a home together. Separations come in all shapes and sizes. Some couples choose to separate for a few weeks before reconciling and moving forward with their marriage. Other couples may live separately for years before finally deciding to file for divorce.
Your separation may be an informal agreement between you and your spouse to live apart for an unspecified amount of time. Informal separations don’t carry much weight with the court and won’t have a major impact on your case. A legal separation is a separation that has been formalized by the court. With a legal separation, a judge will typically issue separation orders that can have far reaching effects if you decide to divorce.
Either spouse can file a petition for a legal separation. Legal separations in New Hampshire can be sought on fault or no-fault grounds, similar to divorce. For example, you may seek a separation on grounds of cruelty or abandonment. However, you can simplify your case by seeking a no-fault legal separation and citing irreconcilable differences, which means the couple can no longer get along and there is no chance for a reconciliation. Once a petition is filed and properly served, a judge may schedule a hearing at either spouse’s request.
At a hearing, a judge will assess your overall family circumstances including income, assets, debts, real property, children, and the health and age of each spouse. A legal separation may be granted even if one spouse objects. Generally, a judge will not put a time limit on your legal separation orders. Yet, New Hampshire law requires couples to report to the court if they’ve resumed marital relations or are no longer living in separate residences. When your separation ends, so does spousal support, child support, custody, and restraining orders. However, a reconciliation won’t affect property awards in your separation order. Those awards stay in place until a judge sets them aside.
Divorces and separations are actually quite similar procedurally except for one thing—permanency. A divorce is a final judgment that terminates your marriage. Once you’re divorced, you are free to remarry, and any of your earnings and assets acquired are considered your separate property. During a separation period, your finances and ability to move forward with life is in limbo. You are typically restrained from selling property, travelling out of state with your kids, or making major purchases while you’re separated.
Despite its limitations, separations offer some distinct advantages to couples on the verge of divorce, but not quite ready to take the plunge. A separation period can help couples plan or even reach an agreement resolving their divorce.
Separation periods are also a chance for spouses to reconcile. New Hampshire law authorizes judges to order spouses to attend a counseling session if it’s apparent that the couple is likely to reconcile. Finally, one spouse may be able to keep the other’s health insurance benefits during a separation period (it's important to confirm this with the employer's insurance company in advance), whereas those benefits terminate as soon as a couple is divorced. Separations offer some tangible financial benefits for many couples.
Your separation order should resolve all the same issues that would be decided in a divorce. For example, your separation order will designate which spouse gets the marital home, who should pay child support, holiday visitation and child custody, each spouse’s right to assets and debts, and even insurance coverage. The main difference between a separation order and divorce decree is that a divorce decree dissolves your marriage—a separation order does not.
You and your spouse can create your own separation agreement and request that the judge in your case turn it into an official order of the court. If you’re having trouble reaching an agreement, you can hire a mediator to help you negotiate custody, property, and support provisions.
A mediator isn’t a substitute for an attorney and can’t offer you legal advice. However, a mediator may be able to help you resolve your differences with your spouse. Once you’ve reached an agreement, a judge will review the agreement’s terms to ensure that it’s reasonably fair and meets your child’s best interests. You may have to attend a brief hearing before a judge will sign your separation order.
The way a judge decides custody in a separation case is almost identical to how a judge will decide custody in your divorce. This is a double-edged sword because in most cases a judge will keep the same custody arrangement from a separation order in a divorce. If you had primary custody under a separation order, this might be good news to you. However, parents seeking a change to custody in a divorce may have an uphill battle. Typically, you’ll need to prove that your family circumstances have materially changed and that an adjustment to custody serves your child’s best interests.
If you have questions, you should contact a family law attorney in your area.