Do I Need to Formally File for Separation?

When a married couple choose to separate, there is always the question of whether or not to make the separation formal by filing a request for a legal separation with the local court. In some cases, taking this action may not be necessary, especially if the spouses have kept their assets separated in the past. However, there are several situations in which filing a formal separation with the court is to the advantage of both spouses, even if the hope is that time apart will help iron out problems and save the marriage. Here are some things to consider before you file for separation.

While it is true that separation is often a prelude to divorce, that is not always the case. The couple may feel that some time apart, coupled with marriage counseling, may ultimately save the marriage. In situations where the intent of the separation is to give each spouse some space to think things through, and there are no compelling financial or legal reasons to make the separation official, there is little point in going through the process to file for separation.

On the other hand, even spouses who hope to work things out may benefit from taking the necessary steps to file for separation with the local court. This is especially true in situations where there are significant financial assets to consider, or if there is a need to make some formal arrangement about who the children will live with during the period of separation. Choosing to file a separation does not mean there is a lack of trust between the spouses. But it is a recognition that making binding and legal arrangements ahead of time will help to minimize the chances of one or both spouses attempting to hide from or otherwise prevent access to money or children if the situation appears to be escalating to a divorce.

While most couples that file for separation normally do not realize this in advance, the court of jurisdiction will take steps to ensure that each spouse has enough resources to live a decent quality of life for the duration of the separation. Temporary custody arrangements are also put into place, making the situation somewhat more secure for the children. In addition, most courts will require that both spouses agree to the separation before one is granted. If one spouse does not want to file for separation and the other does, the only other legal option is usually to move on to divorce.

As with many issue surrounding the possible end of marriage, the laws governing the ability to file for separation vary from one jurisdiction to another. Some have a residency requirement, while others jurisdictions have no such requirement. In just about all situations, the courts assume oversight of all assets and making the decision of where the children will live. Unlike a divorce, which sometimes involves a waiting period before becoming final, a separation is effective the moment a court grants the status.

The bottom line is there may be compelling financial or other reasons to file for separation, even if the intent is to eventually work things out and avoid an end of marriage. Both parties should obtain legal counsel and become knowledgeable about the laws governing legal separation in their location. Attorneys can help determine whether a legal separation is in the best interests of both parties, based on local law and the circumstances of the two parties involved.