There are different ways you can separate from your spouse, and they all have different legal connotations. Here are three of the most common ones:
A trial separation is an informal arrangement in which you and your spouse decide to live separately for some time. It allows you to experience living separately with the option of resuming the marriage if that is what you want after the separation period.
For legal purposes, you are still married when you are going through a trial separation. You don't have to divide your properties or settle your debts, but you may need a local arrangement on how to deal with jointly owned things such as the family car.
Most couples take this route if they want to sort out their thoughts, go through marriage counseling or "rediscover" themselves. The best thing about it is that you can reverse it without going through any legal process.
Mandatory Pre-Divorce Separation
Some states require you to separate for a period before filing for divorce. The idea is to give you the chance to reconcile should you desire to do so. This is usually the case for states that allow no-fault divorce. The legal intricacies governing pre divorce separation differs according to state. For example, some states treat assets acquired during this period as separate property while others still count them as marital property. Your lawyer will advise you on the applicable laws in your state.
Legal separation is an alternative to divorce that some couples choose for one reason or another. It is accepted by the majority of states, but a few ones don't have the provision. Some people use it as a formal trial separation.
Since it is a formal process, you have to file a court petition and go through a court process to establish the rules and regulations governing your separation. This is usually done via a legal separation agreement that addresses issues such as child custody, alimony and asset division. There are distinct advantages of legal separation such as:
- Being able to use your spouse's medical insurance coverage (depends on the insurance policy)
- Ability to reach the ten-year threshold required to meet the threshold for social security benefits for former spouses
- Possible tax benefits
Most family law issues are governed by state laws. Therefore, before you decide on anything, consult a family lawyer like Robert L. Flanagan to help you understand your state's laws. It's also good to consult a tax professional to understand the legal implications of your decision.