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Separation

A separation constitutes the living apart of spouses. The spouses are not yet permitted to remarry because they are still legally married. The separation can be either legal or non-legal in nature. A legal separation generally refers to a separation that is ordered by a court. A legal separation may include a written agreement involving alimony, child custody, child support, and issues involving division of the parties’ property. A non-legal separation refers to a separation of spouses that is not court ordered. Neither a legal nor non-legal separation is required to file for a divorce thereafter.

Why spouses seek a separation rather than a divorce

Spouses may want a separation instead of or before a divorce for various different reasons. Some of those reasons include:


  • Religious concerns or issues.
  • Insurance and Tax issues.
  • Required waiting period for a divorce.
  • Trial period apart from one another.

Things to Remember when Spouses are Separated

If the spouses share a joint bank account or other accounts, both spouses have the right to withdraw the funds. Therefore during a separation, both parties may want to keep their money separated to avoid any future complications.

Both spouses should check their insurance coverage during the period of separation. Some insurance companies do not cover separated spouses.

If Divorce Prevails After a Separation

If the spouses’ marriage ends up in divorce, issues decided by the court or the parties in the separation agreement may be determinative of the same issues during the divorce proceedings. Spouses should proceed with caution when entering into a separation agreement, either legal or non-legal, because some of those decisions may continue to follow into the divorce proceedings. In some states, the parties may convert their separation case, if filed with the court, into a divorce action. In other states, an entire new action for divorce must be filed. And yet in some other states, the court has the discretion to determine whether to use the separation agreement as a guide for the divorce action or convert it into a divorce action.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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