How to Separate from Your Spouse

A Guide to the Legal Separation Process

When a married couple decides to separate, it can be a stressful time for both partners. Many states even require that the married partners go through a mandatory separation period before they are able to file for a no-fault divorce.
A Separation Agreement is a flexible document that can be used for a variety of situations to help ease the stress of a separation, whether you and your husband or wife have already come to a decision regarding your relationship, or you both want to take some time to determine its future.
If you and your spouse are thinking about separating, or have already decided to live apart, then our guide offers information and tips to help ease you both through the process.

What Does Separating from Your Spouse Mean?

Separating from your spouse means that you remain legally married (either permanently or for the time being), but live apart from one another.
As an example, a married couple may decide to temporarily separate in an attempt to help or save the marriage, or they may decide that living apart permanently, but remaining married, is the best solution for them. A Separation Agreement would be useful in both cases.
A Separation Agreement can also be used for a husband and wife or married partners who have already decided that they will most likely divorce in the future.
Note that our Separation Agreement is intended for married couples only. However, it can be used if you and your spouse are considered married via common law. Classification of common law marriage varies from state to state, so it’s important to seek legal consultation or do your own research to determine if, and under what conditions, your state recognizes common law marriage.

What is a Separation Agreement?

A Separation Agreement is a legal document that allows a married couple to sort out each person’s shared responsibilities and obligations in preparation for living apart. It includes terms to divide property, debt, and other finances, plus anything else that may need to be divided or allocated between each partner. It also addresses family matters such as child custody and child support, parental responsibilities, and alimony or spousal support.
Rather than settling these financial and family issues in court, outlining these terms in advance can save you and your husband or wife potentially costly litigation fees. There are two types of Separation Agreements that can be chosen depending on your situation:
  • A temporary Separation Agreement is an option for married couples who want to try separation as a way of potentially saving the marriage, or who haven’t decided if they want to divorce. A temporary Separation Agreement isn’t considered in court in the event of a divorce, so a new agreement would have to be made if the couple ends up choosing to divorce.
  • A standard Separation Agreement is valid even after a divorce, and is generally considered by the presiding judge in the final divorce judgement or proceeding. A married couple may use this agreement if they already know they are going to divorce, and want to collectively divide property, finances, parental responsibilities, child support, alimony or spousal support, and any other assets, rather than have the court decide how these things are divided.
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Are Separation Agreements Legally Binding?

Whether a Separation Agreement is legally binding or not depends on the laws in the state you lived in during the marriage. Some states require that you file your Separation Agreement with the court to determine if the terms of the agreement are legally enforceable, and some do not. Check with your local county court office or consult your state’s laws to determine if your Separation Agreement needs to be filed in order to be legally binding.
If the Separation Agreement needs to be filed in your state, here are some examples of content that might cause it to be contested in court:
  • The terms regarding childcare are not in the best interest of your children (e.g. the parent that the children will be living with is unfit to care for them properly).
  • The agreement contains information that is falsified or otherwise untruthful, such as if one spouse doesn’t disclose all of their assets and liabilities (e.g. any personal debt they may have, or any property they own that the other spouse is not aware of).
  • The agreement is generally in favor of one spouse but not the other (e.g. one spouse receives all the benefits, like compensation, but the other receives nothing) or when the terms are so unreasonable that a person of sound mind would most likely not accept them.

Who gets Child Custody in a Separation?

In a legal separation, you and your husband or wife are still legally married, so you have the shared responsibility of caring for your child or children. However, a Separation Agreement allows you and your spouse (referred to as the custodial parent or parents in a Separation Agreement) to establish if one parent has sole custody, or if you both want joint custody.
Other factors, such as living arrangements for the children and a visitation schedule, can also be determined in a Separation Agreement. Of course, the parents should consider how the separation affects the child, and ensure that the final decision has the child’s best interests in mind. If the parents are unable to come to an agreement regarding child custody, then the decision ultimately falls to the court.

Are Separation Agreements Public Record?

A Separation Agreement may only be public record if it is filed through a county court office. If it is not filed, then it is not public record. However, if the Separation Agreement is later incorporated into a divorce proceeding, then it may become public record at that time as part of the divorce.
For anyone entering a new relationship where the other person claims to be legally separated or in the process of getting a divorce from their previous partner, being able to verify that a Separation Agreement exists may provide peace of mind. You can check if a Separation Agreement is public record by searching the public court records of the county court office where it might have been filed.

Is it Time to Legally Separate?

It’s important to remember that a Separation Agreement is a flexible document that can be applied to a variety of situations where married couples want to separate.
Whether you and your husband or wife have decided to divorce, want to take some time away from each other to reconcile your thoughts and decisions regarding your relationship, or have simply decided that living apart is the best course of action for you both, creating a Separation Agreement is a wise first step.
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