Legal Separation
When parties decide to separate, but
not yet get divorced, it may be necessary
for them to obtain what is often called
a “legal separation.” A legal
separation can generally be achieved
in two ways: first, a couple can simply
agree to draft a contract between themselves,
which sets forth all of the terms and
conditions of their separation.
This
contract or “separation agreement” can
include provisions pertaining to separate
living arrangements, support for each
other and the children, custody and visitation
arrangements, the use of property, taxes,
insurance, and other important matters.
In most states, there is no requirement
that such a settlement agreement be filed
with the court, or that the court be
involved with the process at all.
A second, more formal approach to achieving
a “legal separation” entails
filing a legal action in the court system.
This may be known as a Complaint for
Separate Maintenance or some variation
of those terms. The filing of such a
legal action ultimately obtains the endorsement
of the court.
The parties still have
the right to settle their case, and to
sign a contract or settlement agreement
setting forth all of their wishes. If
they cannot settle, then the judge will
be asked to fix the terms and conditions
of their separation arrangement. Whether
the case is settled by agreement or decided
by the judge, a court order or final
judgment will ultimately be issued at
the conclusion of the process.
Many important legal consequences arise
from living separately. For example,
in many states, if one spouse dies while
the parties are married but living separately,
the other spouse may be prohibited from
claiming an elective share from the estate
because he or she is not included in
the deceased spouse’s will. Therefore,
it is important to seek sound legal advice
before proceeding with a legal separation. |