To file for legal separation, you need to check the separation state requirements, draft a legally binding document, and file a court petition. Before this, you should consider whether it’s better to choose divorce over the legal separation process or attend mediation and minimize the conflict with your spouse.
So, if you are wondering, ‘How do I file for legal separation?’, this guide will provide all the answers you need. You’ll find out how this process differs from divorce, what legal separation forms you need for it, and what some common mistakes to avoid during the process are.
What Is Legal Separation?
A legal separation is a process that begins after two spouses decide to live separately but not get divorced. In other words, spouses can still be officially married but live in separate households.
There are many reasons for choosing legal separation over divorce, such as religious and moral beliefs that oppose divorce, keeping health insurance coverage, and similar. Plus, filing for legal separation also implies establishing boundaries and responsibilities regarding:
Child custody and visitation
Child support
Division of property and assets
In general, legal separation is less expensive than divorce and allows for reconciliation between spouses. Plus, it allows couples to have all legal and financial matters in order even if they don’t live together anymore.
Types of Separation
There are three major types of separation—legal, temporary, and permanent. Each usually lasts a different amount of time and entails different court duties.
Let’s learn more about them:
Types of Legal Separation
#1. Legal Separation
Legal separation is similar to divorce, as both processes involve court procedures. After the separation becomes official, spouses start to live separately and divide their duties regarding debts, child support, custody, and other important affairs.
Spouses filing for legal separation also have to pay legal separation court fees, as they would do with divorce court fees. The only difference between the two is that spouses are not divorced and can reunite if they agree to this, which they wouldn’t be able to do after divorcing.
#2. Temporary Separation
Temporary separation is a period during which couples can pause, rethink their decisions, stay in touch, and decide whether they want to stay together. While this period is ongoing, spouses can still divide their financial and legal obligations.
After the temporary separation ends, all scenarios are possible, including a reunion, divorce, or legal or permanent separation.
#3. Permanent Separation
Permanent separation occurs when couples have irreconcilable differences and are positive that they don’t want to stay together. This type of separation can be informal; for example, spouses can decide to live separately without going to court but still be in touch to avoid the impact their divorce would have on children.
Even though couples live independently, permanent separation still affects their property rights. For instance, a spouse may have the full right to property or assets acquired after the separation without the obligation to share it in any way.
How to File for Legal Separation: A 6-Step Guide
To file for legal separation, spouses must meet state-specific criteria and take several other factors into consideration, including dividing property, determining obligations, drafting a separation agreement, etc.
Let’s check the six major steps to legal separation you should have in mind:
#1. Check Your State’s Requirements
First, checking the state-specific legal separation filing requirements is one of the best ways to establish grounds for the process.
That said, some states demand that at least one spouse live in the state where you wish to file for legal separation. Moreover, certain states may require you to have a domestic partnership in that state before filing without requesting you or your spouse to be a resident.
#2. Divide Properties and Determine Legal Obligations
Once you have legal grounds for separation, you and your spouse should agree on how to divide your property and take care of legal matters like child custody or visitation. The division procedure includes distinguishing between separate and mutual property pieces.
The same process occurs during divorce, and couples who have signed prenuptial agreements can use them to facilitate this procedure. Once a divorce (whether contested or uncontested) is complete, ex-couples can also file a postnuptial agreement. Still, couples whose legal separation document takes effect cannot do this, as they are still technically married.
Lastly, spouses should focus on well-being and make the best choices for their children. Consequently, they need to determine which parent the child(ren) will stay with and who will pay for the child's support, as well as establish a visitation schedule.
#3. Draft a Legal Separation Agreement
The next step for one or both spouses is to create a legal separation agreement. This is one of the mandatory legal documents for this process, and you can generate it using our legal separation agreement template.
When creating this document, it is important to include all the obligatory elements, like spouses’ information, separation date, living arrangements, child custody details, support, liability division terms, etc. Our templates do not leave out any of the aforementioned requirements and are also simple to use.
#4. File the Petition With the Court
You can file the petition with the court by contacting your legal separation attorney or filing the petition online (e.g., using the government’s website).
Another option is to do it yourself by contacting your clerk; this filing method is also known as pro se. Finally, you need to be aware that petition filing implies paying court fees, which may vary from one state to another.
#5. Serve Your Spouse
Knowing how to serve legal separation papers is crucial if you and your spouse file for this procedure individually. Specifically, you must notify your spouse that you have filed a petition for legal separation.
In some states, your spouse will have a certain period to respond to it by either agreeing to it or contesting it. The response will then set the ground for the legal separation process.
#6. Attend the Court Hearings
The last step in this guide on how to file for legal separation is to attend court hearings. During these procedures, judges examine the legal separation agreement and determine whether it is fair for both parties and made according to the laws.
If the court confirms the validity of the legal separation agreement, it immediately becomes enforceable. Failure to abide by such an agreement may lead to legal consequences.
Legal Separation vs. Divorce: What Are the Differences?
Several differences arise in a legal separation vs. divorce comparison, and the most important ones relate to the aftermath of these processes. First, legal separation does not mean that spouses are no longer married.
This leaves room for potential legal separation reconciliation, which is a couple's reunion after they resolve their issues and decide to live together again. As for divorce, there is no chance for spouses to get married again.
Divorce is also typically more expensive because it involves more complex property division sessions and other important documents, such as prenup or postnup agreements and marital settlement agreements.
Even though couples still have to go through liability division and determine the legal obligation regarding children when filing for legal separation, this method is still cheaper. The same applies to avoiding signing additional documents, such as non-disclosure agreements, after a heated and contested divorce.
On top of this, it’s important to point out another difference between a legal separation vs. annulment. An annulment is the complete voiding of marriage due to noncompliance with the law (e.g., marriage of minors), while legal separation does not question the legality of marriage.
4 Mistakes to Avoid When Filing for Legal Separation
Let’s examine the mistakes you should avoid when filing for legal separation:
Not seeking professional help. Your spouse may file for legal separation and send you an agreement that may be unfair. You may not be able to notice this without a lawyer, which can lead to giving up some of your rights (e.g., the right to a piece of property).
Not knowing the state requirements. Uncertainty about state requirements may render your document void and incur additional costs for issuing new ones. For example, your document will be invalid in the states where the main validity rule implies that one spouse is required to reside there, but none of you do.
Leaving home or dating before reaching an agreement. In some states, the authorities may consider the party who left home to be the one giving up on the relationship. Similarly, dating someone during the separation process can be considered adultery.
Involving children in the conflict. Personal well-being should always be your top priority. This is why you should do your best to exclude children from the conflicts you and your spouse have.
How Can Contracts.net Help You With Family Law Documents
Contracts.net can help you with family law by offering various templates for legal agreements that allow you to prepare your documents without wasting time or money.
All you should do is choose the type of document you need and enter the necessary details in blank fields; our software will do the rest! For instance, you can use a prenuptial agreement template or a handy postnuptial agreement generator to avoid paying expensive lawyers to craft these documents for you.
Final Thoughts
To file for legal separation, you need to get information about the state requirements, create the agreement, serve it to your spouse, and file a petition in court. Many couples choose legal separation over divorce because it is cheaper and allows for possible reconciliation.
Seeking professional advice, complying with the law, and paying attention to your spouse's and children’s well-being are the most important parts of this process. Additionally, you don’t have to create the necessary documents from scratch; Contracts.net can lift this weight off your shoulders and make them for you!
How Do I File For Legal Separation FAQ
You should get a legal separation instead of a divorce because it is less expensive. Additionally, you can officially reunite with your spouse after a legal separation, which you cannot do after divorcing.
The procedure for separation is to create an agreement following the state terms, serve it on your spouse, file a court petition, and wait for the court’s official statement.
Yes, you can file for legal separation without a lawyer, as most states allow this. However, we highly recommend hiring or consulting a lawyer for this process in order to make sure everything is going according to plan.
Legal separation takes a couple of months to complete. Even though it’s simpler than divorce, the process, along with a legal separation timeline, can feature multiple sessions such as hearings, overviews, etc.
Yes, legal separation is reversible. Couples can go through a reconciliation process and return to living together with the initial boundaries and duties regarding financial and legal matters.
Yes, legal separation affects property division. Spouses who file for legal separation must go through the liability division process to determine the ownership and the right to use the property.
