Sometimes instead of filing for divorce, one party will file for what is known as a legal separation. The concept behind the separation is that both parties will be able to see what a finalized divorced would be like in terms of financial, custody, and living arrangements. It’s a form of temporary “trial divorce” that may or may not result in an eventual permanent divorce, and it helps many couples that would have initially divorced decide that divorce is not actually for them. During the separation, couples may reconcile and withdraw the separation decree, and this is much simpler than having to get remarried after a true divorce.
Just like a divorce, though, the separation is a time of difficulty, disagreements, and often emotional pain. Couples marry with the intent to be together for life, and during a separation, they’ll be maintaining separate residences and financial lives. They won’t be under the same roof with their children, either, and this can be difficult in a way that only separated or divorced couples understand. It’s rough.
How Will You Be Notified If He Files For A Legal Separation?
The chances that you won’t already be aware of the separation is unlikely. That’s because separation is generally a collaborative effort, with both parties needing to agree on the terms of separation BEFORE the legal separation is filed. If he hasn’t notified you that he’s filed for separation or at the very least discussed it with you, chances are he might not have filed (this isn’t always the case, though, as every case is different).
To put it simply, court-ordered separation is generally well known to both parties when it occurs. That’s because once the legal separation agreement is constructed, it’s supposed to be served (service of process) to the other spouse (you). If your spouse has filed for a legal separation, it’s their responsibility to see to it that you are notified. They can serve you with the papers themselves, have a sheriff or other local official serve it to you, or have an adult unrelated to the case give you the papers.
It’s never easy to know that your marriage is going through a trial so severe that separation is necessary. Many couples choose to get counseling during this time, talk regularly to see if they can reconcile their differences, or even bring in a mediator to see if things can get better on household matters. The asset of a separation is that if the parties decide to proceed with the divorce, they can often use matters agreed upon during the separation to convert those decrees into a divorce. It’s never easy, but this is the way that states handle things when they allow the legal separation agreement before a divorce is sought.
A legal separation is never a good time for anyone involved. People invest a lot in their marriages, and a legal separation often involves children who are also affected by the legal arrangement. This doesn’t mean that there’s never a cause for separation. Sometimes it’s good for married couples to live apart, try out a “divorce” arrangement before the divorce is finalized. In many cases, couples decide what they knew at the beginning of marriage: They love each other and want to stay together. For those couples who don’t reconcile, the divorce is much simpler because there’s already a legal separation agreement to guide them into the divorce.
Separation agreements cover all the things that a divorce agreement might. They lay out the terms of living arrangement, child custody matters, child support matters, and division of property matters. If there’s any spousal support due, this would be covered in the separation agreement as well. All in all, it’s like a trial divorce that couples can make the most of. Some folks will find that separation is too much for them, and they might ask, and receive, the right to “go home” to their spouse. Other couples will follow through with the divorce and find things laid out for them clearly thanks to the separation agreement.
One thing is for certain. If your spouse files for a legal separation, you WILL know about it, whether by getting papers from him or from the court during service of process. Someone WILL serve you with legal separation papers, whether your spouse or someone else, so if you haven’t received these papers in any way, there’s a chance that legal separation hasn’t been filed for yet. The court must be aware of any type of legal separation, so if you’re not hearing anything, no news might be good news for now. This doesn’t mean that your spouse might not choose to serve you with legal separation papers eventually. Once you get these papers, you need to contact a divorce attorney for yourself so that you can respond to the legal separation agreement. If you disagree with parts of it, it’s up to you to make sure that you fight those matters in court.
Anyone who needs to have legal advice about matters of legal separation would do wise to call our law offices. Our experienced attorneys can guide you in matters like legal separation and the general process of responding to a legal separation agreement. As with all matters of marriage, divorce, and separation, a lawyer is your best friend
There are times when couples who are in the midst of serious marital problems seek a legal separation. This usually takes place when they are either working towards a reconciliation or considering a permanent split. A divorce is a legal dissolution of a marriage. However, a legal separation is a court order which mandates the rights and duties of a couple who remain married but live in separate homes.
What is a Legal Separation?
Unlike a divorce, a legal separation is not permanent. But much like a divorce, during a legal separation, the courts will make provisions regarding the division of assets, spousal or child support, and child visitation. Some people consider this process to be a trial run for an actual divorce in an effort to ascertain if a permanent split is the right decision. There are states, such as Texas, that do not allow legal separations.
Differences Between a Legal Separation and a Divorce
There are specific differences between a legal separation and a divorce; the most distinct one being that legally separated couples remain married. However, spouses are allowed to retain health care and Social Security benefits during a legal separation. Those benefits are terminated after a divorce. Another key difference between a legal separation and divorce is that your spouse is still considered to be the next of kin and is responsible for making medical or financial decisions should you become seriously incapacitated.
In a divorce, the division of debt is allocated during the court proceedings; yet during a legal separation, both parties may still be responsible for the marital debts incurred. During a legal separation, a spouse has the right to seek property benefits from their deceased partner’s estate. These benefits are no longer available after a divorce.
In contrast to a divorce, you cannot remarry during a legal separation. But most importantly, a divorce is final. If a couple wants to reunite; they have to remarry.
Reversing a Legal Separation
A legal separation doesn’t mean a marriage has ended. If a couple separates, they have the opportunity to stay together if both parties decide to reconcile. This process is called a reversal. Once you and your spouse have agreed to permanently reunite, you’ll need to obtain a copy of the original Order of Legal Separation. If for some reason you did not receive this order after filing for separation you can obtain a copy from the family court clerk where you initially filed for separation. If the judge never filed the order, then you and your spouse are not legally separated, and you can move on with your lives.
If the judge did enter the order, then you will need to complete a Motion to Vacate Order of Legal Separation. This motion will affirm that both you and your spouse have decided to end the separation. It is also necessary to give a reason for the reconciliation and confirm that a divorce was never filed or finalized. The docket number from the original order will need to be included in this document. You should ask the family court clerk for instructions on how to appropriately complete this motion. You can find examples of these filings online, but it may be useful to seek legal representation to ensure that you present the information correctly. If the motion is not completed accurately and according to the court’s required format, the judge may deny your request.
Both you and your spouse will need to sign this motion and then draft an Order to Vacate Order of Legal Separation. This should be placed at the end of your motion and does not need to be elaborate or exhaustive. It could conceivably say, “The above-entitled action is ordered vacated.” Make sure to include a space where the judge can sign and date the order.
The Motion to Vacate as well as the Order should be filed with the clerk at the Family Court where you originally filed for legal separation. Include a copy of the Order for Legal Separation, and be prepared to pay a filing fee. This fee must be paid in full before your motion will be accepted by the court.
Once the orders and motions are filed, a hearing date will be set by the court, and both you and your spouse will need to attend. During the hearing, you will explain the reasons for the reconciliation, and unless there are extenuating circumstances, the court will cancel the separation. All assets will return to the pre-separation status. In addition, alimony or spousal support, child custody arrangements and child support will end. At that point, the court no longer has any jurisdiction over your marital status.
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