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Are we legally separated if we’re getting a divorce?

June 29, 2018

Unless you have filed for a legal separation, you don’t have certain protections under the law until your divorce is final. You can be separated, physically, and living in different locations without being legally separated. You can also be legally separated while living in the same house.

What is Legal Separation?

Legal separation is a document that lays out your rights and responsibilities while you’re going through a divorce or physical separation of more than a few months. A formal separation agreement allows you a certain amount of legal autonomy while you’re going through a divorce. Without one, your spouse can drain your bank account or hinder your life in other ways, and you’ll have very little legal recourse.

At the bare minimum, your separation agreement should cover:

– Debt obligations and liabilities during the separation
– Division of marital assets, including cash and bank accounts
– Any child support, custody, and visitation agreements
– Responsibility for health, life, and auto insurance payments and coverage
– How retirement savings or pensions will be divided
– Any disclaimers or a document of forfeiture for separate property like inheritances

Legal separation can be the first step before filing for a divorce, but it can also be a legal agreement used in place of divorce.

Why File For a Legal Separation if You’re Not Divorcing?

Most couples divorce within three years of a legal separation. However, a small percentage choose to remain legally separated for years without actually divorcing. There are several reasons for choosing to remain legally married to someone even after your marriage is over. The most common are religious reasons, financial difficulties, military or Social Security benefits, insurance coverage, and tax advantages.

However, if you do choose legal separation, it’s important to take steps to protect yourself. Sit down with your spouse, or in a room with a mediator or lawyers if there are communication issues, and make some decisions. Any agreement should protect your interests and those of your children, whether or not you have physical custody.

Both of you should have a clear idea of where you stand financially as far as savings, assets, debts, and investments. Once you’ve obtained and filed a legally binding agreement, you should:

– Establish credit under your own name
– Close any joint bank accounts
– Close any joint credit card accounts

Drawbacks of Legal Separation

While it depends on the state you live in and how detailed your separation agreement, there are some disadvantages to not filing for a divorce. In many states, you can still be held liable for your spouses debts. He or she could rack up a ton of credit card expenses and leave you holding the bag. You may also decide that you want to remarry some day. There is also a feeling of being in limbo; you’re not really married any more, but not divorced. It’s also important to note that any child born to a woman who is still legally married is the responsibility of her legal spouse regardless of biological relationship.

Some people prefer to make a clean slate. The cost and many other factors of divorce and legal separation are the same. It’s up to you and your spouse to decide if the advantages outweigh the disadvantageous of staying legally married but leading separate lives in every other way.

How Long Can You Be Legally Separated?

Legal separation is indefinite but reversible. It may be an opportunity to gain some perspective and breathing space before deciding if you genuinely want to end your marriage. You may find that it is an ideal solution in your situation. If not, all of the necessary legal elements are already in place should you decide to divorce. The minimum legal time span between filing a separation agreement and filing for divorce is usually six months to one year, depending on the laws in your legal state of residence.

Are There Any Circumstances That Can Void a Legal Separation?

Some states require a couple to file a legal separation before they can divorce. However, this is not an option that is available in all states. In some, it isn’t required at all before divorcing. A legal separation is not applicable in common law relationships.

The separation agreement can be canceled or modified at any time, but this must be done in court. It can also be transitioned to a divorce if the minimum time period has been reached. There is a gray area in some states regarding sexual relationships between partners who are separated, whether legally or not, and planning to divorce.

If one partner contests the divorce or initiates encounters in order to reconcile, any overnight stays, trips together, or similar circumstances can be used to contest the official date of separation and delay the divorce action. The court will use two legal standards to determine if sexual contact meets the standard of reconciliation, thus voiding the agreement or re-starting the waiting period:

– Did the couple portray themselves publicly as a married couple?
– Was there a mutual agreement to reconcile?

Both of these instances would have to be proven to the judge.

If you have questions about your rights under divorce law, contact an experienced family lawyer who specializes in divorce and separation.

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