If your marriage isn't going quite so well and you're not sure what to do about it, know that you have options. A legal separation is an alternative to divorce for people who can’t continue to live together but do not want to end their marriage. A couple is legally separated after petitioning the court to recognize their separation. Simply living apart does not constitute a legal separation. All states except Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas recognize legal documentation of separation.
What Is a Legal Separation Agreement?
A legal separation agreement is a legal document signed by both spouses that details such issues as child custody, spousal support, and living arrangements.
In some states, legal advice is required to make a separation agreement legally binding. Your attorney will make an application to the court so that a judge can sign your separation agreement. Some states don't recognize a legal separation. If you come to an agreement in one of these states with your spouse without making it court-ordered, you will have no legal protection under the law should your spouse decide not to follow the agreement.
Benefits to Legal Separation
Pursuing legal separation comes with benefits to ease tension. Living apart gives a couple the opportunity to work on their marriage. A spouse and children can also remain on the working spouse's healthcare plan.
Under legal separation, the marriage can be extended to the 10-year mark, so the less-earning spouse can draw on the other spouse's social security. Staying married—but legally separated—means the couple can take advantage of certain income tax benefits, including possible increases in deductions.
If divorce is against a couple's religious beliefs, a legal separation can allow them to live separately and not jeopardize their values.
If you are moving out, be sure your name is removed from any rental leases. If your spouse doesn’t pay the rent, you don’t want to be held accountable. When you move out, have your mail forwarded to your new address or post office box.
Keep a copy of all addresses, phone numbers, and account information on mortgages, bank accounts, and credit accounts. Have your name removed from any accounts that you no longer want to be responsible for.
Put a freeze on all joint bank and credit accounts if you can’t get your spouse to agree to have your name removed. Until the accounts are frozen, you are still legally responsible if they are in both your name and your spouse’s name.
Handling Taxes and Benefits
Make copies of all income tax records for the past six years, at the least. State and federal tax agencies are not a party to marital separation and divorce, so any taxes owed will still be your responsibility.
If you are doing a legal separation instead of divorce so that you can maintain health insurance coverage, check the policy language carefully. Some insurance companies include language which will cause coverage to lapse in the event of a legal separation. Be sure you are still covered.
Consult with an accountant concerning pension plans and retirement benefits. You need to make sure that you meet all of the necessary legal requirements to maintain your interest in any pension accounts or retirement benefits.
Hold on to Special Belongings
It is not unusual for a divorce judgment to award separated spouses the personal property that is in their own possession. If there are important belongings that you leave with your spouse upon separation, you should specify in your separation agreement that those things come to you if you should divorce.