Legal separation (sometimes "judicial separation", "separate maintenance", "divorce a mensa et thoro", or "divorce from bed-and-board") is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree. The most common reason for filing legal separation is to make interim financial arrangements, such as deciding who will pay bills, possess property, and whether alimony is appropriate, prior to a divorce. These financial arrangements are actually what the term "separate maintenance" refers to, and "separate maintenance" is not a synonym for "legal separation".
Furthermore, in cases where children are involved, a court order of legal separation often makes temporary arrangements for the care, custody, and financial support of the children ("for the time being"). Thus, part of the court order is a document in child custody. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.
Legal separation does not automatically lead to divorce. The couple might reconcile, in which case they do not have to do anything in order to continue their marriage. If the two do not reconcile, and they wish to proceed with a divorce, they must file for divorce explicitly.It is the solution when you’re neither married nor divorced. If one of you has already moved out, please consider making it legal to protect yourself concerning child custody and support, taxes, and any new debts that might be incurred. It can also help form a basis for negotiating your eventual divorce settlement. All states except Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania, and Texas recognize legal documentation of separation.
Legal separation is an arrangement between a married couple that is distinct from divorce or trial separation. It does not go as far as divorce in dissolving their legal union, but has the added recognition of a court, and its attendant stipulations, that trial separation lacks. Legal separation is relatively rare, because couples looking for a cooling-off period that could potentially lead to being reunited generally opt for trial separation, while the vast majority looking to terminate their union choose divorce.
Features
- Trial separation occurs when a couple decide to temporarily end their cohabitation. This is a personal decision that does not involve the courts, and the couple may or may not choose to reconcile. During the trial separation period, there is no change in their legal status as a married couple. Legal separation also does not change the status of the couple, but makes definite decisions about the division of the couple's property. Legal separation results in the issuance of court orders awarding temporary child custody, child support, alimony or other division of property.
Function
- Legal separation is occasionally sought when a married couple are opposed to divorce for religious concerns. It is also a way to keep some of the benefits of marriage, such as insurance coverage, pension benefits, or preferential tax treatment, while also maintaining a strict enforceable boundary between the individuals and their assets. In this latter case, spouses should carefully read the terms of their pensions and insurance policies, because many now stipulate that legal separation can carry the same effect as divorce.
Time Frame
- Another reason couples seek legal separation is because the divorce process itself can be time-consuming. Many states have mandatory cooling-off periods that begin once a divorce petition is served and which prevent any action being taken on the divorce for 30 to 90 days. Because the issues faced by a couple going through divorce can be immediate, it's not uncommon for them to file for legal separation to clarify access to or ownership of certain assets and child custody during the cooling-off period while the other aspects of the divorce are negotiated.
Effects
- Once the court goes through the trouble of reviewing a married couple's assets and making preliminary decisions about how those assets would be equitably divided, it generally does not move backward. In other words, the decisions made during a legal separation regarding alimony, child support, custody and other matters generally set the tone of how a full divorce would unfold. Though the terms of the legal separation are not binding in a divorce settlement agreement, the two do tend to be consistent. Thus, if entering into a legal separation, it is important not to enter into agreements that you would not want to see made permanent in a divorce.
Considerations
- Legal separation is not divorce. It might look and feel like divorce if the spouses do not live together, have distinguished and keep separate their property and accounts, and do not interact. But the two are still legally married and cannot remarry without going through a formal divorce. Depending on the state, a couple that are legally separated might or might not have to repeat the process all over again to obtain a divorce.
- In California, married couples or domestic partners that no longer wish to be legally bound to one another may file for a divorce or for a legal separation.
Residency
- Unlike for a divorce action in California, there is no residency requirement for filing for a legal separation. For this reason, some people file for a legal separation first and later convert it to a divorce when they have lived in California long enough to meet the residency requirements.
Procedure
- The procedure for a legal separation in California is the same as for a divorce. You must initiate the action by filing a petition for legal separation and serving your spouse or domestic partner with the petition.
Issues
- A legal separation can settle all the same issues that a divorce can in California including,property division, asset and debt division, child support and custody.
No comments:
Post a Comment