Legal separation is a legal proceeding through which a husband and wife petition a court to allow them to live separate and apart. The court can decide matters of custody, support, and property division in the legal separation. Parties remain legally married even with a legal separation and cannot remarry. They must file a separate petition in court for divorce.

Legal separation has different names depending upon the jurisdiction. In some states a legal separation is called a limited divorce, judicial separation, separation from bed and board or a divorce a mensa et thoro. Some jurisdictions require that the parties to the marriage become legally separated before they can divorce. The length of time for the legal separation varies depending upon the jurisdiction.

Before divorce became more widely accepted, spouses in an unsuccessful marriage would request a legal separation to allow them to live separate lives. Legal separations presume that the parties could reunite. There are some advantages to a legal separation even with the wide acceptance of divorce today. Legal separation has all the advantages of divorce except that the parties cannot remarry. This means they could have relationships with other partners without the fear of reprisals.

There are tax advantages because support paid to one spouse is income to the lower earning spouse and deducted from the higher earning spouse’s income, which could lower the overall tax burden for the couple as a whole. Additionally, any income the parties earn after the legal separation is not counted as community or marital property. Other advantages include being able to continue having the separated spouse in a family medical plan and providing an overall structure or custody, support, and property issues while awaiting a divorce. It is also useful for those couples who are waiting for a religious annulment or divorce by providing transition before proceeding with a legal divorce. Legal separations are not available in every state.

A legal separation gives the parties time to reconcile.


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