Filing for Legal Separation

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Unlike a divorce, in which only one party must seek an end to the marriage, a court will typically not force a legal separation on one of the parties. Accordingly, a married couple must agree to a legal separation. While the laws regarding legal separation vary from state to state (some states don’t even allow for legal separation) the following steps must generally be followed:

Step 1 - File a Petition for Legal Separation

A petition for legal separation is a relatively simple document that can be prepared by an attorney in a short period of time. If a litigant does not wish to engage the help of an attorney, the domestic relations division of the court clerk’s office may have form petitions for separation that can be filled out. Typically, the following information is needed in a Petition for Separation:

  • The names, birthdates, and addresses of both parties;
  • The date and location where the parties were married;
  • The names and birthdates of any children born of the marriage;
  • A brief description of the assets owned by the parties;
  • A brief description of the debts owed by the parties; and
  • A list of the relief requested by the Petitioner (legal separation, sole custody, child support, spousal support, etc).

Step 2 - Serving Papers On Your Spouse

If you and your spouse are proceeding amicably with a legal separation you can simply hand him a copy of the filed documents and ask that he file an appearance at the court clerk’s office. An appearance is your spouse’s formal entry into the case and considered proof of personal service. If you do not feel comfortable serving your spouse on your own, you can enlist the services of a legal process server (the court clerk can recommend one or one can be found easily online) or the local sheriff’s office to serve the documents on your behalf. Be sure to file the “affidavit of personal service” prepared by the process server with the clerk of court.

Once your spouse has filed an appearance or proof that he was served has been filed, he can then, if he chooses, file a response to your separation petition.

Step 3 - Negotiating the Separation Agreement

Once your spouse has been served with a copy of the Petition for Separation, it’s time to begin attempting to negotiate a legal separation agreement, which will lay out each party’s obligations during the separation. Major issues that should be addressed in a legal separation agreement include the following:

  • Child custody
  • Child support
  • Visitation
  • Spousal support
  • How will the marital debt be divided during the separation?
  • How will taxes be filed during the separation?

Step 4 -  Finalizing the Separation Agreement

Once an agreement has been negotiated by the parties, the agreement is reduced to writing in a contract that contains all the terms of the separation. This contract is called a “legal separation agreement.” Though the parties are still married, the terms of the legal separation agreement create legally-enforceable obligations upon each of the parties. The main points that should be included in a legal separation agreement include:

  • That the agreement was entered into freely and voluntarily by each party;
  • Custody (legal and residential) during the separation;
  • A visitation schedule to be put into effect during the separation;
  • Child support during the separation;
  • Spousal support, if any, during the separation;
  • The distribution of the financial assets during the separation;
  • The distribution of the marital debt during the separation;
  • The manner in which taxes will be paid during the separation.

Step 5 - Execute the Separation Agreement

Once a legal separation agreement has been drafted and signed, the separation agreement must be presented to the court approval. After the court reviews the terms of the legal separation agreement and enters the agreement into the record, the agreement becomes legal binding. In the event that one of the parties to the legal separation agreement does not fulfill his obligations under the agreement, the aggrieved party can return to court and ask that the non-compliant party be held in contempt of court and compelled to abide by the terms of the legal separation agreement.

The best way to proceed through a legal separation is with a competent and experienced family law attorney by one’s side. Because legal separation agreements are often converted into permanent divorce decrees, it is essential that the parties negotiate a fair agreement that both sides can live with long-term. Knowing the laws regarding divorce and legal separation in your state will go a long way towards helping you ensure that your rights are protected in the future.

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