How Married Couples Can Legally Separate

The majority of married couples who decide that they don't want to live together anymore simply get divorced. A small percentage, however, try a legal separation first, then decide later if they want to make it a permanent split. Although separating first and divorcing later is more expensive, it gives both parties a chance to live on their own and decide whether or not they want to give it another try. If you and your spouse are having problems but aren't yet ready to call it quits, you might want to legally separate.

Do You Need an Attorney?
Yes and no. The process will certainly be much smoother if both you and your spouse have attorneys in your corners, but hiring an attorney is also an additional expense. It really depends on the state of your lifestyle. If you have children, significant debts or extensive assets, an attorney would definitely be a benefit. However, if you aren't worried about custody or community property yet, you can easily file for a legal separation without using the services of an attorney. Just make sure that if you do hire an attorney, he or she is experienced in matrimonial law.

Are You Still Married?
Absolutely. A legal separation does mean that a married couple isn't married anymore; it means that they are no longer living together and no longer share income or possessions. Custody and community property can be decided if you legally separate, but it doesn't have to be an issue. The purpose of a legal separation is to live apart and to experience what a divorce would be like.

Should We Use the Courts or a Mediator?
I would always recommend a mediator over the courts because using a mediator means that you and your spouse make the decisions, rather than abiding by the decisions made by a judge. A mediator will help you to amicably divide your belongings and assets withing the intervention of the courts, and if you feel that you and your spouse can handle a civil division of property and custody, this is the best route to take. You should also know that you will need to follow the same process if you decide to get a divorce, or you can keep it the same as when you decided to legally separate.

Does a Separation Have to Be Legal?
No. If you and your spouse want to separate without involving the courts or a mediator, you are well within your rights to do so. Married couples do not have to live together, and if you are contemplating a divorce, a mutual separation without the courts might be in your best interest. Realize, however, that if you have children, you will have to decide on visitation amongst yourselves.

What if We Want to Get a Divorce
After you have legally separated, you can decide later on whether you want to move back in together or would rather just get a divorce. Some states allow you to follow a simple process from legal separation to divorce, which makes it much less expensive. Other states require you to start the entire process over from scratch, which will usually involve more court and attorney fees.

Is a Legal Separation Permanent?
Only if you don't do anything else. A legal separation can end two ways: getting back together or getting a divorce. If you don't take any steps toward either end, you'll simply remain legally separated. Most married couples, when they decide to legally separate, determine a time they will remain apart. After that time period is over (for example, six months), they will make a more permanent decision.