7 Steps for Filing for a Legal Separation

Woman in Thought
Esther Sweeney / Getty Images

Now that you’ve decided to legally separate from your spouse you need to take the first step and file for a legal separation. Before doing anything make sure you fully understand that a legal separation is a binding, legal contract that is just as important as a divorce.

Also, anything you agree to in a legal separation agreement can set precedence. In other words, if you agree to your wife living in the marital home when you file for a legal separation and you continue to make the mortgage payments a judge may order you to continue doing so after a divorce. DO NOT agree to anything in a legal separation agreement that you would not agree to if you were negotiating a divorce settlement.

How to File for a Legal Separation in 7 Steps

1. First, you must meet your state’s residency requirements. Residency requirements are the same for legal separation and divorce. To find out your state’s residency requirements check your state’s divorce laws.

2. If residency requirements are met you will then file a legal separation petition with the court if legal separation is recognized in your state. You may do this by contacting an attorney, using online resources or contacting your court clerk and filing pro se.

3. Along with your petition for a legal separation, you will file your legal separation agreement. Make sure the agreement covers all issues such as child custody, child support, visitation, spousal support, what is to happen to marital assets, who lives where, who pays what debts, any rules and guidelines pertaining to dating and having other people around any minor children and a time period for which the separation will end.

4. If you and your spouse are not filing for the separation jointly you will need to have your spouse served once you have filed your petition for legal separation. As with a divorce, your spouse will have a certain period of time in which to respond to your petition for a legal separation.

5. If your spouse does not agree to the provision set forth in the petition he/she has a right to file a counter-petition. If this is done and you can’t come to an agreement via mediation you will have to go before a judge to settle the issues you were unable to agree upon. In some cases, a legal separation can be as complicated as obtaining a divorce. 

6. If your spouse agrees to the provisions in the petition all you will need is for both spouses to sign and notarize the agreement so the court clerk can enter it into the court records for approval by a judge.

It's important you understand that once the agreement is filed with the court that it is a legally binding contract that you are both expected to follow.

7. Once a judge has reviewed and signed your legal separation agreement it will be filed and on record with the court clerk. Once it is on record with the court you will want to be sure to keep a copy for your own records. And to follow the guidelines set out in the separation agreement. 

The above is a general outline of how to file for a legal separation agreement. Since laws vary from state to state be sure to check with an attorney to make sure you are taking the correct steps to protect yourself legally during a legal separation according to your state's laws.

Related Stories