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What is a Legal Separation?

A legal separation starts with an agreement between a married couple that specifies how the logistics of living separately will be handled. It should address such things as finances, children, pets, household chores, assets, who is going to live where, and who is responsible for what. It should also clearly state what the other party cannot do, such as sell the house without the other party’s permission or take the children out of state.

Once the couple agrees to all the terms of the agreement, they simply file a motion with their local court with the agreement attached and ask that the judge enter the agreement as an “order of the court.” When the court approves it, it changes your legal status from “separation” to a “legal separation.” The benefit of taking this step is that the agreement is then enforceable through the courts.

What If You Don’t Want to Submit the Agreement to the Court?

Note that you can separate without an agreement. For those who simply need a “time to think,” this approach may work. But it’s best to limit the “trial period” to a specific timeframe, at the end of which you move on to the appropriate next step. If you decide that you’re not going to get back together, you’re not required to have an agreement.

If you do create an agreement, you’re not required to submit your agreement to the court. It’s possible to draft and sign an agreement that guides the actions of both parties, never submit it to the court, and live in a permanent state of separation. However, if something goes wrong, your agreement may not be enforceable, so you lack the legal protection that you may need or want. So, while a legal separation is not required, it’s advisable.

What Constitutes a Good Separation Agreement?

Many legal professionals agree that a good separation agreement “anticipates” a divorce, and should, therefore, be aligning the couple’s expectations with where this may ultimately be headed. Legal professionals would recommend that it be the “model” for a future divorce agreement, so that if a divorce becomes reality, it will be a seamless transition. This means that the separation agreement should conform as much as possible to your state’s statutes on marital dissolution, so that there is not a wrenching change and more emotional turmoil down the road.

You can download our online Divorce Settlement Agreement and use it as a separation agreement. Our form can be customized by state and is a useful tool for initiating a discussion with your spouse, or when consulting an attorney. It will serve as a checklist to remind you of all the things you should discuss.

Whether you decide to pursue a legal separation or you’re able to work things out, being equipped with the proper tools can ease your anxiety and ensure your protection.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.


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