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When Are You Legally Separated?

December 19, 2023

A common misconception is that legal separation occurs when one spouse moves out of the marital home. That is not true. Living apart does not result in a legal separation and it does not matter whether the parties expect that their physical separation is going to be temporary or permanent. A legal separation requires that the parties bring a lawsuit in court, sign a legal document, and have it approved by a judge.

What Is a Legal Separation?

A legal separation is a court action filed by one party against the other party. It requires the spouses to resolve all financial issues in the divorce, including property division, alimony, and child support, as well as child custody and parenting time. These terms are then incorporated into a separation agreement which is the same agreement as what would be prepared if the parties were divorcing instead of separating. The agreement is signed by the parties, approved by the judge, and entered as a court order so it can be enforced in court if needed. 

Note that the grounds for legal separation are the same as for divorce. 

Why Would You Choose Legal Separation vs Divorce?

Legal separation is rarely used. However, it can be an option for couples who have religious or other reasons for wanting to remain legally married. 

Can You Turn a Legal Separation into a Divorce?

If the action for legal separation is still pending, it can be turned into a divorce action by simply filing a motion with the Court requesting that the action be converted.

Once the legal separation is final, either party can file an action to convert the legal separation into a divorce judgment at any time, even years later. 

What Are Other Options Besides Legal Separation If Spouses Decide to Live Apart?

Spouses who want to remain married and avoid legal separation can use a post-nuptial agreement to set out the financial terms of their relationship. They can also agree on who has exclusive occupancy of the marital home. 

If the couple has children, then it is also critical to have a parenting plan to ensure that the parent moving out continues to have access to the children.

Notably, this agreement is not the equivalent of a legal separation agreement, which must be approved by a judge and address the full array of financial and custody issues. 

If you are considering separation or divorce, it is important to get experienced legal advice to ensure your rights are protected. Contact us to discuss your situation and learn how we can help.


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