Legal separation is not just one spouse moving out of the marriage home. It involves the authority of the court behind a plan for how the partners will divide some or all of their assets, and any obligation on the part of one spouse to make payments in support of the other. A separate maintenance agreement is the document that sets forth this plan, and is filed with a state court to produce a legal separation.
The process of legal separation is almost identical to divorce. The major difference, of course, is that legal separation stops short of terminating the marriage. But, by all appearances, the couple will be effectively separated, usually living in different homes and having divided their property. A separate maintenance agreement is the legal document, similar to a marriage settlement agreement, that contains the terms of the separation, often including child custody, alimony, child support payments, ownership of joint property and liability for debts of the opposite spouse. It becomes the framework for the ongoing, but modified, marriage relationship.
In divorce, each spouse is entitled to maintain the lifestyle to which he was accustomed under the marriage, particularly if it lasted more than a few years. The payments of one spouse to the other to fit this requirement are called alimony in divorce, but in legal separation they are called maintenance. The separate maintenance document is that which sets forth the terms of these payments, which become tax deductible for the payer, and other considerations with respect to the couple's assets.
Read More: Legal Separation Agreement Vs. Decree of Separate Maintenance
Couples usually opt for a legal separation either because they are morally opposed to marriage, need a cooling-off period before an attempt at reconciliation, or because there are financial benefits to remaining legally wed. The separate maintenance agreement is a contract between the two spouses that governs the ownership and access to their mutual property. The terms can be customized to fit the situation, ranging from a complete division of assets in total separation, or an ongoing intermingling with one spouse providing child support or alimony-like maintenance payments.
Divorce can limit or terminate certain benefits enjoyed by the spouse of an insured or pensioner. Legal separation can preserve many of these benefits. Hospital visitation, for example, remains a right under legal separation since the couple are still legal spouses. The availability of coverage under the health care insurance plan of a spouse from which a person is legally separated depends on the terms of the plan, but it often persists. A divorced spouse has a perpetual claim to his spouse's Social Security benefits if the marriage lasted for at least 10 years, and legal separation can allow this time to continue tolling while the two live separately.
Though an agreement between the parties has a high priority in determining the division of property and determination of child custody in a divorce, a court is likely to preserve the terms of a legal separation if it converts into a divorce. In other words, the division of property and support payments established in the maintenance agreement have a large impact on the terms of a divorce, if it comes to that, and it's difficult for one party to alter the arrangement. Thus, a maintenance agreement should be viewed as possibly a permanent settling of affairs.
Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.