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Legal Separation

Most states have laws recognizing legal separations. While legal separation is not a divorce, it is obtained through a court action. Unlike a divorce, obtaining a legal separation does not require a waiting period. The parties can fix their rights and obligations to each other immediately via the courts rather than waiting several months. A couple may want to avoid divorce and seek a legal separation because of religious reasons, tax and insurance considerations or in order to continue to receive state or federal benefits.

Grounds

The grounds for obtaining a legal separation from the court vary among state laws but typically a legal separation is granted if the court finds that:

the parties are incompatible;
there are irreconcilable differences causing the breakdown of the marriage;
one of the spouses has abandoned the other for at least a year;
one of the spouses has committed a felony and is incarcerated in prison; or
there is evidence of ongoing domestic abuse and violence.

Some laws require a finding that continuing their status as married persons protects the parties' financial, legal, social or religious interest. Either the husband or wife may file for a legal separation.

Effect

A legal separation does not return the parties to an unmarried status. Any rights and obligations that married couples have to each other continue to exist unless they were modified by a decree of legal separation.

A legal separation gives the court the power to make decisions concerning children of the marriage. Additionally, if a divorce action is filed, the court that issued the decree of legal separation has jurisdiction over the divorce as well.

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