Basis For A Legal Separation

Anyone who is living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they are living apart. An example of living ‘without fault’ is where the separation is not due to a voluntary consent to be separated. For example, if the husband is relocated to another city for his job, and the parties agree for him to move there, then neither party can file a Petition for Legal Separation because they are living separate and apart. If they were living separate and apart without an agreement to do so, there would be a basis for the legal separation. The concept of ‘without fault’ is the same concept as ‘irreconcilable differences’ or ‘no fault’ in a divorce.

Legal Separations Are Infrequently Used

Actions for legal separation are not common. If you are granted a legal separation by the Court, the parties are still married, but not living together. That can be like living in limbo, and is almost always a temporary situation. Support arrangements in trial separations can often be done informally by agreement between the parties, so that the legal separation is unnecessary. A legal separation order can be useful, for example: 1) in the case that a spouse wants support but not a divorce, 2) a spouse wants to remain on the other spouse’s insurance, and 3) during a prolonged separation to be able to deduct the support on a party’s taxes.

Distribution Of Property During Legal Separation

The court generally does not have the power to distribute marital and non-marital property in a legal separation situation. The parties can, however, agree to give the court the power to divide their property, if that is what the parties both want.

Moving From A Legal Separation Action To A Divorce

A proceeding that started as a legal separation can become a divorce action, if a party files a Petition for Dissolution of Marriage after the Legal Separation action. In the divorce action, the Court does have the power to divide the parties’ assets between the parties.

What A Legal Separation Agreement Should Include

If there are children, then the agreement should provide for child support. If college is an issue, then college expenses should be provided for. The child support/college expenses will need to be paid in a certain amount and at certain intervals. Normally, the child support is paid monthly, and the college expenses are paid at intervals, as necessary. The child support can be paid directly or through a garnishment from the pay of the person who owes child support. The college expenses can be paid directly to the school in question, or in some other manner.

If there are children, there should be a visitation schedule and a custody agreement. The child(ren) should primarily live at one address, regardless of whether the parties share joint custody or not. Although the parent who does not have primary residential custody is entitled to visitation, be mindful of the fact that older children may have ‘lives of their own’. Also, be mindful of the fact that children of all ages may be involved in sports activities which can cut into a parent’s visitation. It is important that both parties have access to the children, and that the children develop through sports and other activities.

Whether maintenance is to be paid or not. Always remember that maintenance ordered by the court is taxable to the person receiving it, and tax deductible to the person who is paying it. If the maintenance is agreed to by the parties, but not in a proper court order, the Internal Revenue Service will not allow the person paying it to deduct it from their taxable income. You cannot file a joint tax return if you are planning to have the payor deduct the maintenance from his or her taxable income. You should discuss this with an accountant. Depending on your situation, you may or may not want to have one person deduct the maintenance payments from taxable income.

The joint bills need to be paid in some manner.

A decision needs to be made about who will remain in the marital residence, and who will pay for its upkeep. You need to decide if the bills paid for the house are to be reimbursed to the party paying the bills when the house sells, or if a divorce is later granted (for example).

If there are any joint refunds, such as income tax refunds, you need to decide how such refund(s) will be divided. If you can’t reach an agreement before the refund is paid out, then you can have the money put into an escrow account until the issue is resolved.

If you own a home, and you are not filing a joint tax return, you need to decide who will get the mortgage (if any) and income tax deductions. Perhaps one person needs the deduction(s) and the other person does not. In this situation, the decision about who gets the deduction(s) can be a good negotiating point.

If you have child(ren), then there needs to be a decision about who will receive the tax deduction(s) for the child(ren). Usually the person paying the support is considered for the deduction(s). If both spouses are employed, then perhaps the deduction(s) can be rotated between the parties. Perhaps one party is entitled to the deduction(s), but the deduction(s) are of no benefit tax-wise to that person. In this situation, the use of the deduction(s) can be a good negotiating point between the parties.