Legal separation is either a precursor or alternative to divorce which involves the removal of one spouse from a shared household. Although they are considered still legally married, this separation has both economic and personal consequences as regards child support spousal support payments, and any income earned during the term of the legal separation.
The Judicial Process of Separation
A formal legal separation involves a judicial process presided over by a court judge; for example, in California the state Supreme Court is mandated that couples must live in different houses in order to qualify as legally separated.
It is important to understand that during this separation, the spouses remain husband and wife; however any income earned after cohabitation and its is considered their sole private property, and does not factor into any post divorce settlements – should the legal separation morph into a full-blown divorce. Indeed; eventual spousal support payments in the event of a divorce are affected by the date of legal separation.
Consequences of Legal Separation
Although separated couples are allowed to date and see other people during the period of the legal separation, they cannot marry third parties. Primarily, the court judgment is necessary to ratify the terms of the regulatory agreement presented by the parties by mutual agreement; or, by the presiding judge as regards parent child relations. Some of these considerations include the extent of parental authority, child care and support, visitation, and any associated maintenance costs of the afore-mentioned.
How Do You Start the Process?
The process of legal separation is started after the couple reaches a mutual agreement and presents the appropriate application – which is the petition for divorce/separation – and jointly presents this application to a magistrate. Alternatively one spouse can present the application, as long as he/she has the consent of the other spouse to do so on his/her behalf. Additionally, this application – the Settlement Agreement – also includes the terms of the regulatory agreement, which concerns matters of visitation childcare subject to custody decisions concerning matrimonial property, pension payments, family contribution, housing allocation, and any other considerations that arose as a result of the marital agreement.
Contentious Legal Separations
Generally speaking, legal separations – as well as divorces – proceed in a much more economical fashion when there are no children involved. If, however, the proceedings are contentious and one spouse files the complaints, he or she must have various documents that purport to support his/her economic or situational grievances. Of course, the other spouse and file a counterclaim against the plaintiff. After the court receives these, the legal procedures will be set at a later date, at which time the spouses will have to appear in court with their lawyers.
In the worst-case scenario of either a legal separation, or outright divorce, if the spouses have not reached a mutual agreement, then the judge, having heard both sides, will render judgment. As such, you should always consult with a family attorney even before you begin the process of a legal separation, because the ramifications will have a life-changing effect on your family – especially if there are minor children involved. In the event that there are no objections from your spouse as to the terms, the most likely scenario is that the presiding court will grant the separation.
As the laws vary from state to state, it is imperative that you consult with a local attorney, was well-versed in Family Court law, before you begin the process.