How To File For A Legal Separation

If you've decided to split up but don't want to get divorced, you may be wondering about how to file for a legal separation.

by Tracy Achen, Divorce Coach 

Before you get started, you need to understand that a separation agreement is a legally binding contract. A legal separation addresses many of the same issues as divorce (except that it doesn't end the marriage). Therefore, you should put just as much thought into your legal separation as you would any divorce agreements.

How to File for a Legal Separation: Step by Step

Filing a petition for legal separation involves several steps, which may vary slightly depending on the state where you live. Before you get started, it’s a good idea to consult with a local attorney who can help you understand the laws in your state and guide you through the process. These are the general steps involved when filing for a legal separation.

1. Check your state laws and requirements

The laws and requirements for legal separation vary by state. Not all states have laws specifically addressing the concept of a legal separation. The states which don't acknowledge legal separation are Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas. If you live in one of these states, getting an ante-nuptial or post-nuptial agreement can help spell out many of the same provisions as a separation agreement. You can also read Can You Get a Legal Separation in TX for more information.

For states that do recognize legal separation, you will first need to meet your state's residency requirements for legal separation. It's important to note that not all states have the same residency requirements for legal separation as they do for a divorce. For example, to get a divorce in California, at least one spouse must live in the state for 6 months and in the county where the divorce is file for 3 months. Whereas, there is no length of residency required to get a legal separation as long as one spouse lives in the state. This is why it is vital to know the legal separation laws for your state.

2. Prepare and file the petition for a legal separation

If you have lived in the state long enough to meet the residency requirements, you can proceed with filing a petition for a legal separation. The petition for legal separation is a legal document that outlines the reasons why you are seeking a separation and the terms of the separation agreement you are proposing.

You can either retain a lawyer to handle this for you, or you can fill out your own separation agreement using online resources or those provided by state court websites.

The petition will typically include information such as your name and address, your spouse's name and address, the date of your marriage, the grounds for separation, and the proposed terms of the separation agreement. To be sure that all your bases are covered, your separation agreement should contain provisions for the division of property and assets, outline who is responsible for bills and debts, address how child custody and visitation will be handled, set the amount of temporary child support or alimony to be paid, and any other details that need to be worked out.

It's important to put just as much thought into the provisions of a legal separation agreement as you would for a divorce. This is because courts will often incorporate the separation agreement into the terms of your divorce if you decide later on to get divorced.

Once the petition is prepared, you will need to file it with the court in the county where you and your spouse reside. You will typically need to pay a filing fee at this time.

3. Serve the legal separation papers on your spouse

Once all the necessary paperwork is filled out, the petition will need to be served on your husband, unless both of you are filing jointly. This may involve hiring a process server to deliver the petition, or it may be possible to have your spouse sign a waiver of service. After your husband is served with the petition, he will need to respond within a certain period of time.

4. Negotiate a settlement agreement

If one spouse doesn't agree with the provisions, a counter-petition can be filed. At this stage, it is best to work out disagreements privately or with the use of a mediator. If an agreement can't be reached, the matter will need to go before a judge to settle everything.

5. Sign and notarize the separation agreement

If both parties agree to the provisions of the separation agreement, all that is needed is the notarized signatures of both spouses so that it can be presented to the court for approval. If things are tense between you and your spouse, the agreement can be signed at different times and in front of different notaries.  

6. Submit the separation agreement to the court

The final document will then be filed with the county clerk to be submitted before a judge. Once the judge has reviewed and signed the separation agreement, it becomes a court order and will be filed with the court clerk. Once approved by the court, your separation agreement is legally binding, and both you and your spouse are obligated to abide by its terms. At this time, you should request official copies for both you and your spouse.

What to be aware of when getting a legal separation:

It's important to note that in many states, it is possible to convert a legal into a divorce decree at a later time. Since there are time limits in some states, you should contact a lawyer to find out what the specifics are in your state.

While you can remain legally separated forever in many states, there are certain states that restrict how long the legal separation will remain valid. It you live in a state which imposes a deadline, you'll need to either extend your legal separation, reconcile, or get divorced at the end of the time period.

Getting legally separated can be somewhat costly and time-consuming. If you're fairly certain you'll get divorced in the near future, it may make financial sense to skip the extra expense of getting a legal separation.

Keep reading for more information on how to file for a legal separation and understanding what your rights are: