What if my state doesn’t allow a legal separation?
It is important to understand the difference between physical separation, legal separation, and a separation agreement. The first one means that the parties are no longer living in the same residence, and at least one of them intends to be separated. If one person in the marriage moves to another state to take a job, and the other person stays in the marital home, they are not physically separated as far as the law is concerned if both intend to keep the marriage together. A legal separation is living apart recognized by a state. As the question indicates, there are a few states that do not recognize a legal separation. This article will address that problem. Finally, a separation agreement is a contract agreed upon by two persons married to each other. It will cover whatever legal matters the parties determine is appropriate. Ir is the answer to avoiding court. It allows parties to make their own decisions, instead of turning their future over to a Judge who may enter an order neither party likes.
If you live in a state that does not recognize legal separation, you cannot just move to another state on a temporary basis to take advantage of that state’s laws concerning legal separation. Most states require waiting periods before legal actions can be taken in domestic matters, such as divorce. The simple answer is just deal with your state’s law and choose your other remedies when legal separation is not available.
As previously discussed, separation means living separate and apart. It does not require any legal action. The parties just separate with one party leaving the marital home. The person moving out may not want to be separated. They may desire to reconcile. It does not matter. Only one person has to have the intent to live apart. The time for legal actions, such as divorce, starts to run on the date of separation. That date is important. Husband and wife should have no disagreement. The date is very important for determining when one of the married parties can file for an absolute divorce. It can also be used to set a beginning date for child support and alimony.
Married persons are always free to negotiate and sign a separation agreement. This is true in a state without legal separation. It is the means to get around the lack of a legal separation. In fact, a separation agreement will state that the parties are separated and living apart and intend that their separation is legal and binding. The agreement can cover any topic desired as long as it does not violate state law and public policy. An example would be an agreement to shorten the waiting period for a divorce. If state law requires parties to live separate and apart for a year, a separation agreement cannot shorten that period. The agreement would state the date of separation and both parties would be bound by that date.
A separation agreement can cover alimony, child custody and support, visitation rights, property settlements, and any other issue between the parties. It is a good idea to resolve all issues in one document. Do not leave any issues for a later time. Each party has better leverage in negotiation if all issues are on the table at the same time.
One of the prime motivations for agreeing to a separation agreement is the privacy issue. Many people do not want their personal business including property rights made public. A court order is a public document. Anyone can obtain a copy. A Judge will lay out in great deal of his or her findings, including child custody and support, alimony if any, and a listing and division of all the marital property. A separation agreement eliminates all of that from happening.
If you state does not recognize a legal separation, then this topic does not matter. You can make your separation agreement the equivalent of a legal separation. If it resolves every issue between you and your husband or wife, all that is left is to wait for the state mandated time of physical separation to pass. Then one of you can file for divorce and complete the termination of the marriage. There will nothing for the court to handle except the granting of the absolute divorce.
WAITING PERIOD FOR DIVORCE AND OTHER MATTERS
If you state does not have legal separation, it should have no effect on the waiting period for divorce. Each state sets its own law as to how long people must wait before filing for divorce. If you have a separation agreement, as previously noted, the waiting period is just a state imposed requirement. If you do not have a separation agreement, you do not have to wait to file for child support, child custody, or alimony. You can pursue those matters at any time following physical separation.
If you state does not allow for a legal separation, your best course of action is to negotiate a comprehensive separation agreement. That same advice applies in states that recognize legal separation. A complete and binding separation agreement that addresses all the issues of divorce and separation is the way to deal with these matters. The agreement does not have to be filed in court. It is a private contract and as long as both sides honor the agreement, it will never see the inside of a courthouse.