Legal marriage separation: a guide

Learn the differences between marriage separation and divorce and find out which option is right for you.

What's Inside

What's Inside

Marriage isn’t easy…and neither is divorce. If you’re unhappy yet uncertain about ending your marriage, one option you may wish to consider is marriage separation. 

Legal separation allows your marriage to remain intact while you and your spouse live separate lives. There are advantages and disadvantages to legal separation. For example, this space gives some people what they need to confidently decide how to move forward.

This article aims to help you better understand marriage separation. It explains the types of separation, how to legally separate, and how legal separation differs from divorce.

What is marriage separation?

Marriage separation is a period where spouses live separate lives while remaining legally married. Often, this takes the form of a trial separation, where spouses set a time limit on deciding whether to reconcile or separate permanently. When a married couple separates, they may do so informally or formally.

Informal separation

An informal separation usually doesn’t involve any written agreement. If it does, the agreement is incomplete, doesn’t address important legal issues or doesn’t have the force of law. 

A legal separation is an official agreement short of divorce that separates you from your spouse for legal purposes. Like getting a divorce, getting a legal separation requires you to obtain a court order from a judge setting out the terms of the separation. The order typically addresses childcare, property division and any support obligations either spouse must undertake. 

Not every state authorizes legal separation. States that don’t have legal separation include:

  • Delaware
  • Florida
  • Georgia
  • Maryland
  • Mississippi
  • Pennsylvania
  • Texas

If you live in one of the listed states, you may be able to create an agreement formalizing your separation from your spouse, but that agreement won’t give you the status of being legally separated.

Note that some states set time limits on legal separation. Indiana allows one year, and Hawaii allows two. After that time elapses, you must file for divorce or reconcile with your spouse.

Formal separation

In states that don’t authorize legal separation, you may be able to create a contract dealing with the key issues of separation, such as child custody and visitation, child support, spousal maintenance and property division.

How to legally separate

Legal separation is typically not a long process, but there are a few key steps you must take.

1. Write a separation agreement

Many courts publish documents to help people draft separation agreements. If you don’t need to address too many issues, filling in a template you download from the court’s website may satisfy your needs.

Other people work alone with their spouse or hire the help of a mediator and/or lawyer to find an agreement on all terms of the separation and put that into writing.

2. File with the court

After the agreement is finalized and signed, you file it with your local court. Many, but not all, courts allow electronic filing. You typically pay a filing fee, which currently is often a few hundred dollars.

3. Attend a hearing

If you have a legally sound final agreement, the court may decide no hearing is required. 

However, if you have remaining disagreements or your separation agreement appears to be unfair or is missing important elements, the judge may set a hearing. This may proceed like a trial, where you’re able to call witnesses and present other evidence supporting your side of the case.

After you file your final agreement or present your case, the judge issues a separation order setting the rights and responsibilities of each spouse during the separation.

Depending on whether you hire a lawyer, how much work your lawyer needs to put in and how much time you spend in court or mediation, your separation may cost anywhere from a few hundred dollars to tens of thousands of dollars. 

The process may take from a few weeks up to several months, depending on relevant state law and your local court’s schedule. Cases where you litigate in court typically take the longest, since you have to work around the court’s schedule.

Some people consider legal separation as a “preview” to divorce. While they have some similarities, legal separation and divorce have different final outcomes. The chart below details legal separation versus divorce.

Legal SeparationDivorce
TermsSeparation agreement may address child custody, child support, spousal support and property divisionDivorce decree may address child custody, child support, spousal support and property division
TaxesSpouses file separate federal tax returns, depending on when they separatedSpouses file separate federal tax returns, depending on when they divorced
Marriage StatusStill legally marriedNo longer married
RemarriageSpouses can’t remarrySpouses can remarry

How an attorney may help

How an attorney may help

Only you and your spouse can decide whether to separate. However, having more information about how marriage separation works may make the decision slightly easier. 

Consulting an attorney may help. They can explain legal separation in detail, discuss your state’s laws, draft and negotiate your agreement and guide you through mediation or litigation. 

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Frequently asked questions

What is legal separation?

Legal separation is a process available in the majority of states where spouses separate their lives, similar to divorce. However, they remain legally married.

How do you file for legal separation?

The first step to file for legal separation is to create a separation agreement with your spouse. The agreement should, at a minimum, address spousal support, property division and, if you have minor children, child custody and support. Once you have a final agreement, you can file for legal separation with your local court. 

What is the difference between a legal separation and a divorce?

A legal separation is an agreement between spouses to separate their lives while remaining legally married. A divorce is an official legal end to a marriage.

How much does it cost to file for legal separation?

Filing fees for legal separation vary by state and currently are usually in the low hundreds. Overall costs for legal separation vary based on whether you hire an attorney and how much work they need to do, how much you and your spouse agree or disagree, and how much time you spend in court or mediation. If you have a simple agreement, you may only spend a few hundred dollars in attorney and filing fees. If you and your spouse have to resort to courtroom litigation to get your final legal separation order, you may spend tens of thousands of dollars.

Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.

This page includes links to third party websites. The inclusion of third party websites is not an endorsement of their services.

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