Legal Separation

If you and your spouse do not want to live together anymore, but you don’t want to or cannot get a divorce at this time, you can enter into a legal separation. In most cases, you and your spouse, with the help of your lawyers, work out a Separation Agreement that spells out the terms of your separation. The terms can include maintenance, equitable distribution, child support, child custody, arrangements for shared parenting, and other issues. You then file the signed Separation Agreement with the court and live separately.

If your spouse doesn’t want a separation or you are unable to agree on the terms of a Separation Agreement, then you can ask the court to order a legal separation and set the terms. This is rarely done; it can be very time-consuming and expensive and it doesn’t result in a divorce (although it can make a divorce proceeding possible after one year). In circumstances that would justify a court-ordered separation there is usually also justification for a divorce, so it’s usually better just to begin a divorce proceeding.

There is no provision for a “no-fault” separation. The five possible reasons justifying a court-ordered legal separation are slightly different from those for a divorce:

• Cruel and inhuman treatment by your spouse that endangers your physical or mental well-being to the point where it would be unsafe or improper for you to continue to live with your spouse;
• Abandonment (including literal, lock-out or sexual abandonment);
• Neglect or refusal to provide for your support when your spouse is responsible for your support
• Adultery within the preceding five years without your permission or participation; or
• Incarceration of your spouse for three or more consecutive years during the marriage.

As in a divorce, the court can make orders regarding maintenance, equitable distribution, child support, and child custody/visitation.

A legal separation is revocable, which means you and your spouse can change your minds and resume living together. If you live separately and apart for more than one year after filing your Separation Agreement, or after a court orders your legal separation, then either spouse who has fully complied with the terms of the Separation Agreement (or of the orders of the court) can ask the court for a divorce.

Legal Editor:  Charlotte Lee, April 2015 (updated February 2019)