Whether a couple can file for legal separation depends on state law. In those states that make legal separation available, the process is often similar to divorce. The couple can enter into their own separation agreement or let the court resolve their marital issues, such as property division and child custody. Once a separation decree is issued, the spouses' lives are officially separate. For spouses who later decide to divorce, they can often convert their legal separations into a divorce.
Although state laws vary, after filing a petition for legal separation in local court, the next step is to notify the other spouse. This is known as service of process. Typically, this responsibility falls on the petitioner -- the spouse filing for legal separation. Generally, the petitioner can have legal separation paperwork served by a process server, local sheriff or other adult who is not a party to the case. If the spouses filed a joint petition for legal separation, they might be able to skip this step, depending on the laws of the state.
Once the respondent spouse receives the legal separation paperwork, he is usually required to submit a response to the court within a set period of time. In his response, he can notify the court of his agreement or disagreement with the separation terms requested by his spouse, such as property division, child support and custody. If the respondent fails to answer the separation petition, the court is likely to enter a default judgment of separation in favor of the filing spouse. This means she is likely to receive everything she requested in her petition.
If both spouses are in agreement with the terms of their separation, such as how they will split property and whether one or both parents will provide a home for the children and make decisions concerning their upbringing, the spouses can enter into a separation agreement. If approved by the court, the terms are incorporated into a separation decree, becoming a court order legally enforceable against both spouses. Spouses who live in states that do not offer legal separation, such as Florida and North Carolina, can also enter into such agreements; however, these agreements are typically treated as private contracts and not converted into court orders.
Read More: How Long Does a Marital Separation Agreement Last?
If a couple is unable to reach an agreement, the terms of separation are left up to the court to decide. However, some courts may require the spouses to participate in mediation before the court determines the terms of the separation. As with a divorce, courts decide marital issues based on state law. To determine property division, courts follow either the community property or equitable distribution method. In community property states, such as California, the court divides marital property equally between spouses. Equitable distribution states, such as Indiana, divide marital property in a manner that is fair and just, but not necessarily equal. If spouses have children, the court will also determine legal and physical custody, which it may award to one or both spouses. Physical custody is the right to provide a home for a child and legal custody is the right to make important decisions about his upbringing, such as religion and education. The court will choose the custody arrangement that serves the best interests of the child. In addition to property and custody issues, the court also establishes child support and spousal support orders if necessary.
Conversion into Divorce
After a couple is granted a legal separation, many states will allow them to convert the separation into a divorce if they later decide they want to terminate the marriage. However, some states may place limitations on legal separations. For example, in Indiana, legal separations only last for one year. Therefore, a separation must be converted into a divorce within that time.
- Superior Court of California, County of Riverside: Legal Separation
- California Courts: Filing Your Case
- McKinley Irvin: Legal Separation
- McKinley Irvin: Should I Get a Legal Separation?
- Indiana Legal Services: Legal Separation
- Law Office of Molly B. Kenny: Understanding Legal Separation in Washington State
- New York State Unified Court System: What is Legal Separation by Agreement of Parties?
- Sandra Bonfiglio: Florida Separation Laws - Is There "Legal Separation" in Florida?
- Rice Law: Get Separated in North Carolina
- North Carolina Bar Association: Implications for Later Modification of Incorporation of Separation Agreements Into Court Orders
Based on the West Coast, Mary Jane Freeman has been writing professionally since 1994, specializing in the topics of business and law. Freeman's work has appeared in a variety of publications, including LegalZoom, Essence, Reuters and Chicago Sun-Times. Freeman holds a Master of Science in public policy and management and Juris Doctor. Freeman is self-employed and works as a policy analyst and legal consultant.