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Should We Legally Separate?

If you’re not completely sure you want to end your marriage, a legal separation can let you test the waters. It can give you some financial protection and provide an option for couples who cannot divorce for religious reasons.

Be aware that a few states do not recognize legal separation. Simply living apart is an option for you, but that doesn’t constitute a legal separation in any state.

What are the 3 types of marital separation?

Let’s look at three types of marital separation: trial, permanent, and legal. Each type requires specific steps on your part and may affect your rights differently. It can also vary from state to state.

Trial separation 

Sometimes, spouses simply need a break from one another. If you need time apart to assess your relationship, a trial separation might be a good option. 

During a trial separation, not much changes from a legal aspect. All marital property stays the same, bank accounts remain intact, and any money the two of you earn is still marital money. Similarly, anything you buy during a trial separation is still marital property and subject to equitable distribution, should you decide to get a divorce. 

Couples doing a trial separation often have one spouse remain in the marital home while the other rents an apartment. If there’s hope for reconciliation, this is a great option because it doesn’t stretch your finances too much. 

If you go this route, you may want to prepare a separation agreement to address the following issues:

  • The use of joint bank accounts and credit cards
  • How you’ll budget spending
  • Who stays in the marital home
  • How expenses will be split

Having minor children complicates matters. You’ll need to agree on how to address the trial separation with your kids and how each of you will spend time with them. If you ultimately decide to divorce, this trial separation agreement can serve as a good starter for a marital settlement agreement. However, check your state's rules – some require you to redo your separation agreement entirely.

Permanent separation

If you and your spouse have done a trial separation and decide to continue living apart, it can turn into a permanent separation. If you’ve separated and have no intention of reconciling your marriage, that can also be a permanent separation. 

Not every state recognizes permanent separation. Where states recognize this separation, it can change property rights. So, if you buy a new car while permanently separated, that car may not be marital property

While permanently separated, both you and your spouse become individually responsible for all of your assets, debts, and liabilities. You should also stop using and contributing to any joint bank accounts.

Legal separation

A legal separation requires a court order and is just one step shy of formal divorce. The difference between permanent separation and legal separation is the formality of the process. 

Legal separations involve court proceedings to establish the financial boundaries and responsibilities of each spouse and to set up custody, child support, and even alimony. In many states, legal separation is a prerequisite for divorce.

Legal separation is suitable for people with strong religious ties who cannot divorce. While this may seem like a distinction without a difference, it allows both spouses to move on with their lives as separate individuals while still adhering to their religious practices. 

Is separation required before divorce in my state?

Some states require spouses to be separated before they can get a divorce, while others do not even recognize legal separation. Let’s look at a few examples.

California

Legal separation in California requires a divorce petition and decisions about child custody, child support, alimony, and distribution of assets and liabilities. It also requires a judgment of legal separation. This process is similar to formal divorce. 

One of the most common reasons to choose this option instead of divorce is because you do not meet California’s residency requirements. Divorce requires you to have lived in the state for at least six months and at least three months in the county where you file. Those restrictions do not apply to legal separation.

Colorado

Divorce and legal separation in Colorado are similar. The biggest difference is, after legal proceedings end, the marriage is still intact with legal separation. 

Choosing legal separation instead of divorce is a personal decision often made for one or more of the following reasons:

  • Avoiding religious shame
  • Maintaining one spouse’s healthcare
  • Preserving employment-related benefits
  • Maintaining tax benefits

Florida

Florida does not recognize legal separation. You and your spouse may separate if you wish, but you will not have any legal rights or protections.

You may draft separation agreements and ask the court to recognize them. But because Florida doesn’t recognize legal separation, there’s no way to enforce a spouse’s responsibility to pay alimony under a separation agreement. To have legal protections, you’d need to file for divorce. 

New York

New York calls legal separation an action for separation. It’s similar to a divorce where you split your assets and debts, but in the end, you’re still married.

Most separating couples in New York use a separation agreement to divide property, assets, and liabilities. Make sure this document is notarized regardless of whether a court reviews it first. Without a notary’s signature, no court in New York will enforce the terms of a separation agreement.

Texas

Texas is another state that does not recognize legal separation. However, you can enter into a separation agreement to divide your property, and a judge can approve the agreement, giving you some legal protections without getting a formal divorce. 

Utah

Utah recognizes legal separation but calls it an action for separate maintenance. The process is similar to divorce and requires you or your spouse to meet Utah’s 90-day residency requirement. 

The judge is required to wait at least 30 days after you have filed an action for separate maintenance before ruling and granting your petition. Choosing this option in Utah is mosWt commonly done for religious reasons.

Should I choose legal separation? 

The most common situations where people choose legal separation include the following:

  • They want a trial period to see if divorce is the best option.
  • One or both wish to retain health, military, or retirement benefits.
  • There are religious objections to divorce.
  • There is a desire to protect minor children from the trauma of divorce.

When you should not choose legal separation

Other times, legal separation is less attractive. Here’s why:

  • You cannot remarry since you haven’t gotten a divorce.
  • You can’t always transition a legal separation into a divorce, so the entire process may be more expensive.
  • It may be detrimental to your children.

If you’re unsure of the marital separation options in your state – or which option you should choose – Hello Divorce can help clear things up and point you in the right direction. Schedule your free 15-minute phone call with us to learn more.