Things weren’t working out between Eve and Beck. They tried their best to reconcile, but it didn’t fructify. Finally, they decided to separate, but getting a divorce wasn’t practical for them. The couple was financially dependent on each other, and divorce would be a big blow to their finances.
Then their lawyer advised them to opt for legal separation, a situation wherein they don’t have to live together but at the same time can share their financial burdens.
In this article, Momjunction tells you everything about legal separation, why you might want to consider it and the procedure to get it. We will also help you deal with the situation and make it less painful for your kids.
Legal Separation: What Does It Mean?
Legal separation is similar to divorce, but it does not terminate the marriage. Under this arrangement, the married couple lives separately, giving each other adequate space. But they continue to be wife and husband legally.
In the US, the rules of legal separation vary from state to state. In fact, a few states, including Texas, Florida, Pennsylvania, Georgia, Louisiana, Iowa, Mississippi, Idaho, and Delaware, (1) do not have the provision at all.
Legal separation is also called limited divorce or divorce from bed and board or judicial separation.
In India, the Hindu Marriage Act has a provision for legal or judicial separation.
A few common rules of legal separation are:
- Husband and wife are free to reconcile at any time.
- Spouses cannot marry someone else when they are legally separated.
- They may convert the legal separation to divorce at any given point if both the partners agree.
- In case they do not agree, either partner may convert the legal separation into a divorce by filing a motion after one year from the date of the legal separation.
- The parties may remarry anywhere in the world only after six months from the day the judicial separation is converted to a divorce.
Since it costs as much, takes as long and requires the similar major decisions as divorce, why would anyone want a legal separation at all?
The difference between separation and divorce may seem to be subtle, but legally they are quite different.
Legal Separation Vs. Divorce:
In legal separation marriage is in a coma, in divorce it is dead.
Couples opt for legal separation over divorce for reasons that are personal, logistical and financial (2):
- The crucial difference between divorce and legal separation is that when you are separated, you are still married legally. Some have religious or personal beliefs that don’t permit divorce, so a legal separation allows the couple to remain married while being able to live separate lives.
- When you divorce, you are single again and free to remarry. You cannot remarry if you are legally separated.
- If a couple remains married, then the spouse may retain certain benefits such as health insurance, which will not be available if the couple is divorced.
- In legal separation wife may not resume her former name.
- You still can inherit from each other if you are legally separated.
- If a child is born to a separated woman, then her husband will be the child’s legal father, unless proven otherwise.
- A legal separation allows the couple to remain connected to each other, financially and otherwise. A divorce doesn’t have that provision.
- A couple can file for legal separation any time after marriage, whereas a divorce can be filed only after completing one year of marriage.
Consult a lawyer before you act! Separation and divorce have long-lasting legal repercussions. An experienced lawyer can help you decide between a legal separation and a divorce.
In order to seek judicial separation, you need to know the grounds on which you can apply for it.
Grounds For Judicial Separation (In India)
Grounds for judicial separation in India are different for different religions. A Muslim couple will have criterion different from a Hindu or Christian couple. Muslims are governed by their personal law, which is not codified.
What is interesting is that a person belonging to any religion in India may marry under the secular law (The Special Marriage Act, 1954). In such a case, the marriage and judicial separation of the couples would be governed by the provision of this act.
The section 10 of the Hindu Marriage Act (3) contains the provision for judicial separation. Judicial separation can be granted on any of the grounds specified in section 13 of the act. This act applies to Hindu, Buddhist, Jain, Sikh and any other person domiciled in India who is not a Muslim, Parsi, Christian or Jew by religion.
Legal separation can be obtained on any of the following grounds:
- Adultery: If your spouse had physical relationships (sex) with another person.
- Cruelty includes unjustifiable and willful conduct to cause danger to life, body or mental health or creating a reasonable apprehension of such danger. It needs not be physical.
- Desertion: If your spouse has left you without any reason or agreement.
- Apostasy: Conversion of religion
- Insanity: Incurably unsound mind or mental disorder.
- A virulent and incurable form of leprosy.
- Venereal disease in a communicable form.
- Renounced the worldly pleasures by entering any religious order or becoming a sanyasi (hermit).
- Spouse has not been heard of being alive for seven years or more.
- The following grounds are also valid for the wife (if she is applying for judicial separation):
- Earlier marriage or second marriage of the husband.
- Rape, sodomy or bestiality committed by the husband.
- Solemnization of the woman’s marriage with the respondent husband before she had attained the age of 15, provided she had repudiated the marriage on attaining 15 years but before 18 years.
For Christians, judicial separation is available on the grounds of adultery, cruelty, and desertion for two years or more.
Grounds For Judicial Separation (In The US)
As mentioned above, each state in the US has a different separation law and grounds for its citizens. However, certain provisions are common (4).
- Either the husband or the wife had a living spouse at the time of their marriage.
- The spouse has been absconding for at least a year
- Extreme cruelty
- The partner has entered into a contract fraudulently at the time of marriage
- Serious neglect of duty
- Extreme and habitual drunkenness
- Imprisonment of the partner
- Absence of cohabitation of at least one year
- Incompatibility between the couple
- Consanguinity, as you come to know that you and your spouse are close relatives.
Based on the grounds of legal separation, you can get the legal separation agreement. You need to know about the agreement in detail as it is a law-binding contract to be followed by you and your spouse.
What Is Covered In A Legal Separation Agreement?
Issues that can be addressed in a legal separation agreement are the division of marital assets and debts, spousal support; if you have children, then child support, custody and visitation. Issues that are addressed during the divorce process are also addressed in the legal separation agreement.
1. Child custody and visitation:
The agreement will have the details of the number of children the couple has, and which child will stay with whom – mom or dad, or if they will stay jointly with the parents. It also includes certain decisions such as authority for non-emergency healthcare, choice of school, religion, etc.
The parents need to follow the visitation rules mentioned in the agreement. Visitation refers to the times at which a parent can visit his/her child, who is in the custody of the other parent.
2. Child support:
The order is passed by the court for either or both parents to provide financial support to a child.
The payments include basic support costs such as food, shelter, clothing, transportation, and personal care. Parents may also be required to pay variable costs such as for his education, any special needs or other activities that involve expenses above the basic support costs.
Since not every family is same, the court may decide on the financial support based on the payer’s earning capacity and the number of children in the payee’s care.
3. Spousal support:
The wife/husband has to request for maintenance in legal separation or divorce if they need financial support from their partner. After considering the circumstances of both the parties, the court may order maintenance for a limited or indefinite time.
4. Property division:
In general, the common property, which is not received by one of the partners as a gift or through inheritance, will be divided equally. If the couple agrees on how to divide their property, then they must provide the details of which partner will receive what property.
5. Debts and obligations:
The couple must disclose all the debts, regardless of who they believe would be responsible for paying them. The judge will determine which spouse is responsible for paying the debts.
Why Do You Need A Legal Separation Agreement?
A legal separation agreement can protect your interests until you and your spouse decide whether or not to file for a divorce.
This agreement also sets precedence for the divorce that may follow.
A legal separation agreement can be converted into a divorce settlement agreement in case divorce takes place.
In spite of a cumbersome process, couples opt for separation for its practical and financial benefits.
Benefits Of Legal Separation:
Below we have listed some advantages of legal separation over a divorce:
- Separation can be a cooling down phase if there has been a conflict in the marriage. It gives the couple some time apart so that they can decide if divorce is what they need.
- In the US, legal separation is better than a divorce if you need to meet the 10-year requirement for social security benefits.
- Unlike divorce, legal separation retains the medical benefits such as health insurance from your spouse. However, you need to read through your spouse’ employer handbook to understand the fine print.
- A legal separation allows you to continue with joint tax filings with your spouse.
- If you and your partner decide to proceed with a divorce after legal separation, the legal separation agreement becomes the divorce settlement agreement, making the process hassle-free.
Consult an attorney, tax advisor, financial planner or accountant to answer specific queries depending on your circumstances. Once you have clarity, you can file for a legal separation.
How To File A Legal Separation?
You need to follow a procedure (5):
- Submit your petition: Before signing your petition, you need to decide if you and your spouse will file it together or separately.
- Decide if you need a temporary hearing: If you and your spouse cannot agree on any of the issues mentioned below, then you may ask for a hearing before the family court. Certain issues that you can ask for temporary hearing are:
- Child custody
- Child placement
- Child support
- Family residence use
- Use of automobiles or other personal property
- Payment of bills
- Payment of maintenance or spousal support
- File the action: You need to file the summons and petitions (or a joint petition) for legal separation. The court will hear your petition after a mandatory waiting period.
- Serve the documents to your spouse: Your spouse must be notified with copies of the summons and any other legal documents pertaining to the case. The proof that you have served the copies needs to be submitted to the court.
- Temporary hearing: Temporary hearing comes at this point. If you and your spouse decide not to have a temporary hearing, then you may ignore this step.
- Parenting plans for minor children: In a few countries, the law requires the parents to complete the ongoing programs for children, as a condition to obtain separation.
- Complete paperwork for the final hearing: This work includes:
- A proposed marital settlement order if you and your spouse could not agree or a marital settlement agreement if you both agreed on everything.
- Final disclosure statements
- Findings of facts
- Vital statistics form
- Attend the final hearing: Arrive early and be prepared. Arrange your paperwork and be polite.
- Complete any documents required after the final hearing: Complete the documents to divide pension plans, car titles or real estate properties, revise your will or change beneficiaries on life insurance policies.
How Much Would Legal Separation Cost?
There is no simple way to answer this question. Like any legal process, a legal separation has certain fee and costs attached. The costs will be same as those of a divorce. In case you get a legal separation and later want a divorce, then you might have to incur extra costs.
Certain costs such as court fees are fixed while others such as legal fees depend on your lawyer.
In India, seeking a junior lawyer can put the separation cost at around Rs. 50,000, while employing a senior lawyer would escalate the costs to Rs. 200,000 or more.
In the US, the costs can vary from $10,000 to $100,000, depending on your attorney’s fee, and your resident state, among others. Also, a consented separation costs lesser than a heavily contested one.
You can opt to seek the separation directly from the court without the services of a lawyer, to save costs.
Legal Separation Without Lawyer (Pro Se)
Self-representation or pro se means to go solo without a lawyer. You may decide to go without a lawyer if you understand the laws and are an expert yourself.
If you do not have adequate knowledge or experience, then there might be significant risks involved in going pro se. When people represent themselves, they end up hiring a lawyer later to fix the mistakes they have made. This may prove to be costlier than having a lawyer take up the process from the beginning.
How To Cope Up With Separation?
All said and done, whether you are the leaver or the one left behind, coping with separation is always difficult and stressful. You need to make conscious effort to come out of the situation. Here are some ways you can try to cope up with separation.
1. What doesn’t kill you makes you stronger:
Separation can be scary. Suddenly, being alone and worrying about money and kids is daunting. Facing your fears and overcoming them only makes you stronger and braver. It makes you self-sufficient.
2. Have friends:
Surround yourself with friends and family. They can help you get through difficult times. Try to talk to them about other things rather than your spouse.
3. Follow routines:
Continue with daily routines and usual activities such as seeing friends, family, going to a club or hobby classes. Following a routine in life helps you remain stable.
4. Get support:
Be it a support group or a therapist, getting help from them is important if you are unable to cope up on your own.
5. Be in talking terms with your partner:
You cannot control your partner’s ways and deeds. But your behavior is in your hands. So respond to them calmly as it is a good start for a healing process. Keeping things civilized is always beneficial.
Coping up with yourself is difficult, but if you have children to take care of, the entire experience becomes a nightmare. The very first question you will get when you think of separation is how to break the news to the kids.
Telling Your Children About Separation:
What you tell your kids depends on their age and how much they understand. It is good for your children if you and your partner agree on what to say to them so that you avoid contradicting each other.
Here is how you can explain things to your children. However, do not expect them to react maturely.
- Let them know you love them a lot. Though it sounds obvious, your children do want to hear and know it from you, especially during this difficult time.
- Be honest with them. If your child asks you questions, then answer them honestly.
- Do not give too many details to children. Tell them things depending on their age and level of understanding.
- Never make a child choose sides. Do not put them in a difficult situation. They never wanted their parents to split.
- Try to minimize tension. Maintain a civilized relationship with your partner for your children’s sake. It will be reassuring for them that they have both their mother and father.
- Look at things from your kid’s point of view. He/she is missing a family. They need to choose between their mother and father, while the ideal situation would have been to live and share their joys and experiences with both of them.
Parents have to be strong to support their children. Nobody wants a separation in their life. But it is a life experience, learn from the bad bits, celebrate the good ones and move on to what life has to offer next.
Here are the answers to some commonly asked questions about legal separation.
Frequently Asked Questions:
1. How long can I be legally separated?
There isn’t any limit to legal separation. As long as you don’t apply for a divorce nor want to reunite, you can remain legally separated.
2. How to behave during legal separation?
Be respectful and civil to your spouse. Channelize your anger. Being civil will give less stress to you and your children.
Have a close bond with your kids. Remain involved in their daily routine and activities. Make your children your priority; try not to make them suffer due to separation.
Follow through stipulations set out in a legal separation agreement.
3. Am I still married if my husband married someone else after a few years of separation?
Yes. Until and unless you get a divorce, you are married.
4. Is it sensible not to divorce until my husband or I want to marry?
Most couples who can’t afford a divorce prefer to do this. But before deciding to remarry, make sure you and your spouse are free of any financial liabilities arising from each other’s debts.
5. If the husband moves out and decides that he no longer wants the responsibility of the family, what rights does the wife have if she is not able to make ends meet?
The wife has the right to property settlement, along with the right to spousal support, depending on the individual’s circumstances.
6. Can a legal separation agreement be modified if both the parties mutually agree?
Yes. You need to create a modification to the agreement and file it.
7. Once a legal separation has been granted, will the assets bought after separation still be considered marital property?
No, it is generally not.
What is your take on legal separation? Let us know in the comment section below.
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