Legal separation appeals to couples who do not want to get a divorce but will still live separately and want matters such as child support, child custody, and property division sorted legally. The formalized separation usually applies to couples who foresee permanent separation rather than a temporary trial separation.
Some common reasons a couple might desire to separate, rather than divorce, include the financial benefits of remaining married (such as tax incentives) and religious beliefs which may conflict with divorce.
Moreover, couples can still access the benefits of legal clarity, similar to divorce orders. Property rights between the two parties are divided up, as are child custody, child support, and spousal support rights and obligations. While couples can cooperate on such matters without court involvement, obtaining a court-approved separation makes it easier to enforce these rights in the future.
Grounds for legal separation generally are similar to the state grounds for divorce and can include incompatibility, abandonment, adultery, and cruelty. Similarly, as a divorce, the child custody, child support, and spousal support conditions can only be changed with court approval.
What is the Difference Between Legal Separation and Divorce?
A court-approved separation does not terminate a marriage. Though the rights and obligations of each side are specified under the separation order, the marriage still legally exists. For this reason, couples who separate legally may not marry a new spouse without breaking bigamy laws. One of the advantages is that couples can easily return to life together should they decide to reconcile.
Unlike a divorced couple, those who have formalized their separation and decided to reconcile do not need to get married again. Rather, they must submit a request to resume the marriage to the court. Similarly, a legal separation order greatly simplifies the divorce process if a couple decides to terminate the marriage permanently.
What are the Different Types of Legal Separation?
Many couples separate without the intention to split from each other or seek a divorce permanently. They may utilize a trial separation to work towards reconciliation or decide to live in separate places. In these situations, legal rights and obligations regarding children, property, and debts remain the same as in marriage.
Issues such as the division of marital property or what one spouse would owe in child support might be subject to an agreement but have not been resolved as they may be in a divorce or legal separation order.
If you are filing for divorce, you may be entitled to, or obliged to pay, temporary alimony while legally separating. In many cases, one spouse may be entitled to temporary support during the legal separation to pay for essential monthly expenses such as housing, food, and other necessities. When deciding whether to permit a request for temporary alimony, the family law judge will often look at several factors based on divorce laws in the local state.
Does One Spouse Need Alimony During the Legal Separation?
Need is considered one of the primary factors that a judge is likely to weigh in when reviewing a request for temporary support. If the spouse has other funds, such as outside income or savings, then a judge generally would not grant temporary alimony because the need does not exist.
Can the Other Spouse Afford to Pay Temporary Support?
When a judge examines whether the other spouse can afford to pay temporary support, the judge is looking at two factors:
- Does the other spouse have the money available to pay for temporary support? and;
- And how will a support award affect this spouse’s ability to pay for their own necessities and maintain their own standard of living?
When determining whether one spouse can pay, the judge will review that person’s income, bonuses, overtime, Social Security benefits, and other income. If the judge agrees with the request for temporary support, the ruling will explain how much must be paid, how frequently it must be paid, and the duration of the payments. Judges usually will not allow retroactive requests for temporary support.
Only in rare cases will a court agree to modify the amount of temporary support. If you request such a modification, you must demonstrate why it should be changed. The courts will likely consider your request if it is being made because of a change in your financial situation. For instance, a modification request might be awarded if one spouse has involuntarily lost their job or if an illness has made it challenging for one spouse to work.
What Happens If You Fail to Comply with an Official Order?
A court order in a separation holds great deference. You can enforce the judge’s decision if a person does not comply with it. For instance, if you are legally separated, and it requires them to pay child support, you can file a petition for failure to pay if they are delinquent.
They may present their case in front of the court if, for example, they can no longer pay the agreed amount due to job loss. However, if they do not present a defense or the judge rules against them, it could hold them in contempt, requiring them to pay fines or serve jail time.
Getting a divorce is stressful, as is the long waiting period until the court formally dissolves your marriage. The crucial point is understanding your rights during separation because it will provide more predictability. Additionally, by understanding your rights, you will know how to navigate the laws to protect yourself during this trying time.
During a separation, a court can also decide on property division, such as furniture, bank accounts, and a house. Moreover, it can determine who is responsible for paying the mortgage, credit card, or college tuition payments. Understanding both of your financial obligations allows the separation to operate more smoothly.
Furthermore, during the dissolution of divorce proceedings, neither of you can sell any property, such as cars or a house. Many state regulations govern selling property while undergoing this process. You should understand the importance of the difference in state laws about selling property so that you can enforce any inappropriate dispositions.
How Do You Qualify for Spousal Support?
The pivotal point of every support case is that one spouse needs financial help, and the other spouse can pay.
Once the court discovers a need and ability to pay, the judge will evaluate the following factors when forming a fair and equitable award:
- The supported spouse’s ability to become wholly or partly self-supporting;
- The time necessary for the supported spouse to gain education to find employment;
- The marital standard of living;
- The length of the marriage;
- Each spouse’s contributions, monetary and nonmonetary, to the well-being of the family;
- The circumstances that contributed to the spouse’s divorce;
- Each spouse’s age and physical and mental condition;
- The paying spouse’s ability to remain financially independent while paying spousal support;
- Each spouse’s financial needs, including all income and assets, retirement assets, court-ordered support payments, and financial obligations;
- Whether the award would cause a paying spouse to become eligible for medical assistance earlier than necessary. (Md. Code Ann. [Fam Law] § 11-106 (2018).)
There is no set formula for judges to use to calculate spousal support. Judges have broad discretion and evaluate each factor equally to ensure a fair award. If the couple desires to control the type, duration, and amount of spousal support, both can negotiate the terms during a settlement conference, and the judge will approve it if it is fair to both spouses.
When Do I Need To Contact a Lawyer?
If you are considering seeking a legal separation and want to obtain spousal support, it may be useful to reach out to your local alimony attorney to get guidance on the process.
