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What is a legal separation?
A legal separation, also referred to as separate maintenance, means that the married parties are still married but certain aspects of their marriage are separated. For a separation to be “legal,” the parties must enter into a separate maintenance agreement that is filed with the Court and approval by a judge. This is often the middle ground between marriage and divorce.
How is a legal separation different from a divorce?
When a couple divorces, their marriage is over. Their community property interests end and all of their assets and debts are divided. In addition, if a couple has minor children, a divorce will resolve issues involving child custody and child support.
On the other hand, a legal separation may include all of the same things as a divorce or it may include specific provisions for certain assets and debts. A legal separation can end community property interests, but it doesn’t have to. Likewise, a legal separation may completely exclude child custody and child support provisions.
Why do people choose separation instead of divorce?
Many people that legally separating is preferable to a divorce. The reasons include:
The parties don’t wish to divorce due to religious reasons
To remain legally married until the ten-year deadline for certain Social Security benefits
To remain legally married until the ten-year deadline for military pension enforcement advantages or a twenty-year deadline for PX and commissary benefits
People also prefer legal separation over marriage for tax related benefits
The parties wish to take a breather from the marriage but don’t wish to be responsible for the other’s debt during the break
What is the process for a legal separation?
The process is essentially the same as for a divorce; however, once the parties receive a Decree of Separate Maintenance they are still married.
The case usually begins with one spouse filing a Complaint for Legal Separation. The Complaint must be personally served on the other spouse who will then file an answer. If the spouses agree on the terms of the Legal Separation a Decree of Separate Maintenance will need to be submitted to a judge to review. If the judge approves the Separate Maintenance Decree, the decree is filed and the legal separation is official.
If spouses cannot agree on the terms of the Decree of Separate Maintenance, or if one spouse does not want to legally separate, the parties may end up in a trial.
What if I reconcile with my spouse? How do we get rid of the court separation?
It is not unusual that couples obtain a legal separation and then reconcile. If a Decree of Separate Maintenance has been filed with the Court, and there is a reconciliation, it is strongly recommended that the couple prepare a Stipulation and Order dissolving the separate maintenance agreement and dismissing the case. The Stipulation and Order will need to be reviewed and approved by a judge. Once the judge approves the Stipulation and Order, it needs to be filed with the Court for the legal separation to be dissolved.
What if I was legally separated but now I want a divorce?
It is also not unusual that couples obtain a legal separation and then decide at a later date to divorce. The downside of a legal separation is that if you later decide to divorce, you will need to start the divorce process from the beginning. This means filing a Joint Petition for Divorce or filing Complaint for Divorce and serving your spouse. The served spouse will need to file an Answer to the Divorce Complaint. If the spouses cannot agree on the terms of the divorce, the matter may proceed to trial. If the spouses agree, a stipulated Decree of Divorce can be submitted.
The benefit of being legally separated before filing for divorce is that you can keep your separate maintenance agreement in place and just incorporate the terms into the Divorce Decree.
What if I want to change the terms of my legal separation?
It is possible to change the terms of a a Separate Maintenance Decree or agreement.
The easiest way to change the terms of a legal separation is to reach an agreement with your spouse. Once you two agree on new terms, you will want to write those terms down and submit them to your family court judge for review and approval. Once the judge approves the terms, file the new agreement with the Court.
If you cannot reach agreements with your spouse for new legal separation terms, you will need to file a motion with the Court asking to change the terms of the separation decree. In the motion, you will need to explain to the judge what has changed and why the terms of the Separate Maintenance agreement need to be modified.
Your spouse will then have an opportunity to respond to your motion and explain to the judge why the terms should not be changed. Alternatively, your spouse might want different terms than you do. Your spouse will have the chance to pitch their terms to the judge.
Once the judge has everyone’s proposed new terms and the reasons for each side’s changes, the judge may make a decision and may make changes to your separate maintenance an agreement.
Can I include alimony in my legal separation agreement?
The short answer is YES! Spousal support can be included in a separate maintenance decree. However, instead of calling it “alimony,” most lawyers refer to this as separate maintenance.
If your separation agreement includes a provision for separate maintenance, it is important to include the amount that will be paid each month and a duration for payment. Failing to include a duration for separate maintenance can lead to some really awful consequences in the event of a divorce.
The filings have different requirements depending on the financial status of the parties and if there are minor children involved. Legal separations can become quite difficult and consulting an attorney is strongly recommended.If you or someone you know is considering a legal separation we can help. Our Legal Separation Lawyers can assist in ensuring your rights are protected and your future is secured. Call us today at (702) 433-2889 or fill out our on-line form for more information.
How much does a legal separation cost?
Questions regarding are often numerous and detailed. Usually clients asking “Is legal separation cheaper than divorce?” are shocked at the answer.
The cost for getting legally separated can actually be more than the cost of getting divorced. This is because if you legally separate and then file for divorce, you are essentially paying twice. This is why we caution are clients to be CERTAIN they want a legal separation instead of divorce.
In addition, filing a separation case requires a minimum of three documents be filed with the Court. This includes a Complaint for Legal Separation where the Court charges a filing fee of $299 and an Answer to the Complaint where the Court charges a filing fee of $217.
For clients who are sure that they want to be legally separated from their spouse, if the terms of the separation are agreed upon the cost is usually between $2000 to $3500. including the filing fees. If the separation is contested and the spouses cannot agree on terms, you should expect to spend at least $3,500.
Do I have to hire a lawyer to be legally separated?
You don’t have to hire an attorney but it is strongly recommended.
Legal separation cases have different filing requirements depending on the financial status of the parties. The filings also vary if there are minor children involved.
The reality is that legal separations can become quite difficult and complicated. Consulting an attorney is strongly recommended.
If you or someone you know is considering a legal separation we can help. Our Legal Separation Lawyers can assist in ensuring your rights are protected and your future is secured. Call us today at (702) 433-2889 or fill out our on-line form for more information.