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".

"Separation" versus "Legal Separation"
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.

Why People Seek Legal Separation
The reasons people ask about separation as opposed to divorce include:

•Religious Concerns - they may have a religious objection to divorce;

•Insurance Concerns - they may wish to ensure that one of the spouses has continued coverage through the other spouse's insurance provider;

•Trial Separation - they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;

•Divorce Waiting Periods - they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce;

•Tax Purposes - Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;

•Social Security and Pension Benefits - Sometimes spouses will wish to delay formal divorce until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits