Filing For Legal Separation

How to File for Legal Separation

For couples not quite ready for marriage, legal separation is a great place to start. Here’s how to file for legal separation.

A legal separation agreement provides partners independence and security without legally ending their marriage. Signed by both spouses, this legal document details issues such as child custody, spousal support, and living arrangements. Filing for legal separation can both protect both spouses before the potential divorce and set a precedence for the divorce, if applicable.

First, Consider the Pros and Cons

Benefits of Legal Separation

The marriage can be extended to the 10-year mark
Which allows the less-earning spouse can draw on the other spouse’s social security
Allowing the couple to take advantage of certain income tax benefits
Opportunity to work on their marriage
Potential tax benefits
Retention of marital status for religious reasons
Retention of certain military benefits
Remain on the working spouse’s healthcare plan (including qualifying children)
Easy conversion to a divorce agreement (if applicable)

Costs of Legal Separation

The costs of filing for legal separation can vary exponentially throughout the United States. There are major financial costs associated with legal separation are:

Filing Fee
Legal Fees (Acceptance Fee, Pleading Fees, Appearance Fees)
Costs and Other Charges (call charges, photocopying, and other reproduction costs, delivery fees, postage, and other similar items)

Steps for filing for legal separation:

1. Confirm The Situation Meets the Grounds of Legal Separation

The grounds for filing for legal separation can vary by state. The following are some of the grounds that are valid in various states:

Adultery
Imprisonment
Consanguinity
Bigamy
Unsound Mind
Neglect
Desertion
Domestic violence
Fraud
Impotence
Physical incapacity
Sexually transmitted disease
Unreasonable behavior

Make sure to check your specific state’s grounds for legal separation.

2. Confirm State Residency Requirements

Parties must meet their state’s residency requirements. Residency requirements are the same for both divorce and legal separation filings.

3. Prepare the following:

NSO copy of marriage certificate of the spouses and birth certificates of the children (obtained within 6 months from the filing of the petition)
Barangay certificate and Community Tax Certificate evidencing residence over the last 6 months of the province or city where the petition will be filed
Copy of marriage settlement or prenuptial agreement, if any
Copy of agreement, if any, relating to custody, support, etc.
Inventory of properties of the spouses and of the ACP or CP (Please see questionnaire or other document request list of the counsel)
List of witnesses (Please see questionnaire to be provided by the counsel)
Other documentary or object evidence

4. File Legal Separation Petition

After the residency requirements have been met, next is filing a legal separation petition with the court of the county the filer resides. Filing can be done by contacting a court clerk and manually filing and paying the filing fee. Some may also consider contacting an attorney or using online resources (such as virtual filing services and local state government websites).

5. Move to File Legal Separation Agreement

A legal separation agreement covers potential issues such as child custody, child support, visitation, spousal support, asset and debt division, residency, and any rules or guidelines pertaining to dating other people.

6. Serve the Separation Agreement

Similar to a divorce, the agreements must be served to the spouse by a third party who is over the age of 18. The spouse will have 30 days to respond or they will relinquish their rights to contest in court.

7. Settle Unresolved Issues

A counter-petition may be filed by a partner who does not agree with the provisions outlined in the petition. If this happens and an agreement cannot be reached, the couple will have to go before a judge to settle the issues.

8. Sign and Notarize

If both partners soundly agree to the provisions set in the petition, then all that is needed is the signature of both spouses. The agreement must also be notarized so it may be entered into the court records for approval by a court clerk.

9. Organize Records and Execute the Agreement

Once the legal separation agreement has been reviewed and signed by a judge, it is filed and recorded with the court clerk.

10. Make Copies

Make sure to keep a copy of the agreement for personal records and follow the guidelines set out in the separation agreement.

It is important for couples to treat the legal separation agreement with the same precision and concern as they would a divorce agreement. If divorce is the next step, a precise legal separation agreement will ensure a smooth transition and division of assets. Each state may have slightly different filing laws, so make sure to look specifically at the filing laws for your state.

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