How to Separate in a Marriage

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Divorce isn't for everyone--at least not immediately. For any number of reasons, spouses might want to live separately for a while before taking the final step to officially terminate their marriage. Depending on where you live, there may be more than one way to do this. Some states recognize legal separations, but a few don't, including Texas, Delaware, Florida, Pennsylvania, Georgia, Mississippi and Louisiana. This doesn't mean you can't separate if you live in one of these states. It just means courts in these states will not issue a judgment of separation, so you'll have to create a separation agreement instead.

If Your State Doesn't Recognize Legal Separation

Negotiate a separation agreement with your spouse. Make sure you resolve all issues. If you have children, you'll need to address not only custody, but visitation and child support. Decide how you're going to divide both property and debts. Determine whether one of you will pay spousal support, or alimony, to the other. You should cover all the same issues you would have to address if you were divorcing instead.

Draft your agreement in legal form. You can download a form from a legal document website or you can draft your own, incorporating everything you and your spouse agreed on.

Sign your agreement in front of a notary. When you and your spouse both sign, it becomes a legally binding contract and you're officially separated. There's no need to file it with family court, unless or until you eventually want to file for divorce based on the same agreement.

If Your State Does Recognize Legal Separation

Research your state's grounds and residency requirements for filing for legal separation. These can vary from state to state.

Access a petition for legal separation that conforms to your state's laws. Many states offer family law forms on their judicial websites. If your state doesn't, call the court or download one from a reputable online legal document provider. Just make sure that what you download or purchase is intended for use in your state.

Complete and file your petition. Typically, petitions for legal separation are filed in family court in the county where either you or your spouse reside.

Serve your spouse with a copy of your petition. Different states have different rules for this, but you can usually ask your county sheriff to hand-deliver your petition to your spouse for you. After you've accomplished this, the steps toward legal separation are usually much the same as those for getting divorced. At the end of the litigation, a judge will rule on issues between you and your spouse and issue a separation judgment or decree of separation.

Tips

  • After you've separated, if you decide you want to divorce after all, you can convert your separation. If you and your spouse agree, you can usually file a consent order or stipulation with the court and a judge will issue a divorce judgment or decree. If your spouse doesn't agree to convert your separation into a divorce, you can file a motion asking the judge to do it anyway. Judges will generally grant these requests--they won't force spouses to remain married if one of them doesn't want to. In most states, the court will carry over the terms of your separation agreement or separation decree into a divorce judgment.

Warnings

  • Separation agreements are enforceable as contracts in civil court. Family courts enforce separation judgments or decrees if you've filed for legal separation. Agreements and decrees are equally binding. However, changing an agreement is typically easier than changing a decree, if you want to amend the terms of your separation. Only the court can change the terms of a decree, so you'd have to go back and have a judge readdress these issues. You can supersede the terms of a separation agreement at any time by creating and signing a new one, provided it hasn't yet been converted into a judgment or decree of divorce.

References

About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.