If you’ve decided to legally separate from your spouse, the first step in this process is to file for a legal separation. Before doing so, know that a legal separation is a binding, legal contract that is just as important as a divorce; the only difference is that on paper, your marriage and legal rights that come with it remain intact. In other words, like a divorce, there will be a division of living arrangements, finances, and child custody.
It's also important to note that when filing for legal separation, anything you agree to in a legal separation agreement can set precedence should you then file for divorce. For example, if you agree to let your partner live in the marital home when you file for a legal separation and you continue to make mortgage payments, a judge may order you to continue doing so after a divorce.
DO NOT agree to anything in a legal separation agreement that you would not agree to if you were negotiating a divorce settlement.
Here's how to file for legal separation.
Step 1: Confirm Your State's Residency Requirements
First, you must meet your state’s residency requirements. Residency requirements are the same for legal separation and divorce. To learn about your state’s residency requirements, check your state’s divorce laws. For example, in California, a married couple can file for legal separation if at least one of you lives in the state. Similarly, in the case of domestic partnerships, as long as the domestic partnership was registered in California, both parties may file for legal separation even if you don't live in the state. If your domestic partnership isn't registered in California, one of you must live in the state in order to file for legal separation.
Step 2: Move to File for Separation Petition
If residency requirements are met you will then file a legal separation petition with the court. You may do this by contacting an attorney, using online resources (such as your state government's website), or contacting your court clerk and filing on your own, otherwise known as pro se. Note that a fee is required to file your legal separation forms. In California, for example, the filing fee is approximately $435, though fees vary by county.
If you meet the state's residency requirements, file for separation in the county where you live.
Step 3: Move to File Legal Separation Agreement
Along with your petition for a legal separation, you will file your legal separation agreement. Make sure the agreement covers all issues such as child custody, child support, visitation, spousal support, how marital assets (like a home or any vehicles you purchased together) might be distributed, who lives where, who pays what debts, any rules and guidelines pertaining to dating other people; which may be considered adultery in some states.
Step 4: Serve Your Spouse the Separation Agreement
If you and your spouse are not filing for separation jointly, you will need to have your spouse served once you have filed your petition for legal separation. As with a divorce, your spouse will have a certain period of time (typically 30 days) in which to respond to your petition for a legal separation.
Step 5: Settle Unresolved Issues
If your spouse does not agree to the provision set forth in the petition, they have a right to file a counter-petition. If this is done and you can’t come to an agreement via mediation or with collaborative law, you will have to go before a judge to settle the issues you were unable to agree upon. In some cases, a legal separation can be as complicated as obtaining a divorce.
Step 6: Sign and Notarize the Agreement
If your spouse agrees to the provisions in the petition, all you will need is for both spouses to sign and notarize the agreement so the court clerk can enter it into the court records for approval by a judge. Do note, however, that anything you do before the court signs off on the separation agreement may affect certain outcomes, particularly as it applies to personal belongings or custody, says David Reischer, Esq., Family Law Attorney & CEO of LegalAdvice.com. For example, "A judge may view a person that moves out of their home as having given up. The court could interpret the person that moved out of the home as abandoning the relationship and forfeiting rights to claim ownership or custody at a future date," says Reischer.
Step 7: Organize Your Records and Execute the Agreement
Once a judge has reviewed and signed your legal separation agreement, it will be filed and on record with the court clerk. After it is on record with the court you will want to be sure to keep a copy for your own records and follow the guidelines set out in the separation agreement.
Overall, since laws vary from state to state, be sure to check with an attorney to make sure you are taking the correct steps to legally protect yourself.