Separations come in all shapes and sizes. You can separate from your spouse informally for a few weeks. A separation may also span years and be formally recognized by the court (also called a “legal separation”). When you are separated it means that you and your spouse live apart. For example, it’s not a separation if you and your spouse live mostly in separate residences but your spouse comes to spend the night at your home every few days.
In some instances, spouses can be “separated,” but live under the same roof, in separate bedrooms. These types of separations are assessed on a case-by-case basis, and a judge will look at the couple’s lifestyle and shared expenses to determine if the spouses are actually separated.
South Dakota recognizes legal separations. To obtain a legal separation, the couple must file a petition with the court. A judge will hold a hearing and issue temporary separation orders resolving matters like alimony awards, health insurance coverage, maintenance of the marital home and vehicles, payment of debts, child custody and support, and any other relevant issue. Although a separation order is a permanent order, it’s not designed to last forever.
The primary difference between a legal separation and divorce is the permanency of a divorce order that doesn’t exist with a legal separation. A court may grant a legal separation when there’s been an irretrievable breakdown of the marriage. As part of a legal separation, a judge can issue custody, support, property, and maintenance orders. Typically, separation orders prevent either spouse from dissipating assets or selling items that belong to the marital estate. In some cases, where there’s a strong possibility of reconciliation, a judge may delay entry of the legal separation for 30 days to allow the couple a chance to sort things out. If there’s no reconciliation within the 30-day period, the court may move forward with a formal legal separation.
By contrast, a divorce terminates a couple’s marriage. The orders issued as part of a divorce decree last indefinitely. In a separation, one spouse may be liable for debts incurred or may have a claim to income earned during the separation period. This is not the case in a divorce. Divorce orders end either spouse’s right to claim a share of the other’s income or assets. Once a divorce is granted, you and your spouse are free to remarry and otherwise move forward with your life.
No. You can obtain a legal separation on the same grounds that you can obtain a divorce—fault and no-fault grounds. If you choose a fault-based separation, you will have to prove one of the state's fault grounds:
But a simpler way to get a legal separation is by seeking a no-fault separation and claiming irreconcilable differences which means the couple can no longer get along.
Spouses can enter into separation agreements on their own or with the help of a mediator. Mediators can't offer legal advice like attorneys, but they are trained to help couples resolve contested issues. Once you and your spouse have reached an agreement on the terms of your separation, your written separation agreement will act as an enforceable contract between you and your spouse. It operates similarly to a prenuptial or postnuptial agreement. However, a separation agreement is not the same as a separation order or temporary maintenance order issued by the court.
A separation order is an official court order – not simply a contract between spouses. Only a judge can make child custody orders and award child support. You can turn your separation agreement into a court order by submitting it to a judge for approval. In most cases, a judge will sign off on a separation agreement if it appears to be fair to the couple and serves the best interests of the couple’s children, if any.
A valid separation agreement should resolve all issues that may arise during a separation period. For example, a separation agreement is of little use if it identifies who should live in the marital home, but doesn’t specify which spouse is responsible for mortgage payments.
Specifically, a detailed separation agreement should address:
If you have minor children, your agreement should also designate child custody, including physical and legal custody, holiday visitation, child support, and where a child a child will go to school. Above all, any custody agreement must serve a child’s best interests.
How custody is treated in your separation agreement may impact your chances at obtaining custody in a divorce. It’s important that you understand your rights and responsibilities under any separation agreement. When in doubt, contact a local family law attorney for advice.