A legal separation agreement and decree of separate maintenance are usually precursors to a divorce. They set the terms for living apart in writing.
Neither a legal separation agreement nor a decree of separate maintenance legally ends a marriage. The separation states that you will live apart, and the decree states what you are responsible for and what you can expect from your spouse during your separation. Responsibility for the separation does not need to be determined for either action.
When you file a legal separation, you wish to live apart from your spouse. This does not inherently mean you want a divorce, but that you no longer want to reside together. It is also the first step in getting a divorce. A legal separation may be preferable to divorce to protect health insurance and encourage reconciliation. Some states, such as California, require a time of legal separation before a divorce can be finalized. The parties must live apart. If they move back in together, the action is dismissed.
Decree of Separate Maintenance
The decree of separate maintenance outlines the rights and responsibilities of each spouse while they are living apart. This decree is enforceable in court through contempt power. Alimony and child support can be sought through a decree of separate maintenance. Custody and property division are also determined. Also, you do not have to live at separate residences, but you must be in separate beds. No pending action for divorce is required for this decree. The judge does not settle disagreements in court. The parties individually settle disputes.
If a decree of separate maintenance is established and support is determined, it changes to a support order or agreement for a specified period of time when the divorce is finalized. Even if the dissolution is not final, the decree of separate maintenance may be ordered. Spousal and child support may change during the divorce proceedings. During the divorce proceedings, property rights and transfers also become final, and may change from the decree of separate maintenance.
Both the separation and separate maintenance agreements must be in writing. Oral agreements are not valid. Any payments made under the agreement are treated as alimony and called temporary maintenance or alimony pendent lite, even if the decree is not enforceable. These payments are tax-deductible unless they are made prior to a formal, written decree. In Utah, separate maintenance can be sought only in the case of abandonment, refusal to support, separation that is not one spouse’s fault and imprisonment.