Legal Separation

Sometimes, when a divorce seems imminent, a married couple inquires about the possibility of "legal separation". Some states refer to legal separation by other names, such as "separate maintenance".

Usually, when people use the term "legal separation", they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony).

Typically, a court will have the power to resolve as part of a "legal separation" any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married.

Also, most jurisdictions require a waiting or "cooling off" period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of "legal separation" or "separate maintenance".

It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek the assistance of a lawyer in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.

If you separate from your spouse hoping that there will be an eventual reconciliation, but things don't work out, the exact procedure for converting your separation into a divorce will vary depending upon where you live. In some states, for a period of time after a judgment of separate maintenance is entered, the parties may convert their case into an action for divorce. In other states, a new divorce action must be started. Some states fall in the middle, giving the court which issued the order of separation the discretion to allow the parties to amend their complaint to request divorce.