What Constitutes Legal Separation?

By Trudie Longren
Legal separation is for couples wanting to split up, but not divorce.

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Legal separation is a court-ordered separation available in many states for couples seeking to live separately without divorcing. Couples who are legally separated may not remarry unless they get a final divorce decree. Legal separation differs from both annulment and divorce. Annulment renders the marriage null and void, while divorce dissolves the marriage. Legal separation is the middle ground between annulment and divorce in that it maintains the marriage, but gives finality to issues such as custody, child support and division of assets.

Agreement to Live Apart

The spouses must be in mutual agreement to live apart. Legal separation requires spouses to live in separate residences. In some states, the final separation agreement must be preceded by a specified time period during which the couple lives apart.

Agreement Regarding Children and Property

The spouses and the court must ensure that arrangements are in place regarding issues of child custody, division or assets and alimony or palimony. Spouses must resolve the separation of assets like their home, cars and personal property, custody and visitation arrangements and any other related issues. This can be done with a written agreement or with the help of the judge or court-appointed mediator.

Final Court Order

The court must issue an order that specifies all the terms of the legal separation. In some states, the order can only be effective after a "cooling off" period. In other states, the order may have immediate effect.

Precedent Setting

The terms of legal separation are often strictly followed if the couple later seeks a final divorce decree. This is an important issue to keep in mind. Both spouses should be comfortable with the terms of a legal separation, particularly as it regards division of assets or visitation and custody, as they may likely become the terms of a final decree of divorce.

About the Author

Trudie Longren began writing in 2008 for legal publications, including the "American Journal of Criminal Law." She has served as a classroom teacher and legal writing professor. Longren holds a bachelor's degree in international politics, a Juris Doctor and an LL.M. in human rights. She also speaks Spanish and French.

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