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Couples considering separation should weigh the benefits of filing a legal separation petition, which can provide financial and legal protection, against the possibility of reconciliation. Legal requirements vary by jurisdiction, and legal advice is recommended to determine the best course of action.
When a married couple chooses to separate, there is always the question of whether or not to formalize the separation by filing a legal separation petition with the local court. In some cases, this action may not be necessary, especially if spouses have kept their assets separate in the past. However, there are several situations where filing a formal separation in court benefits both spouses, although the hope is that time apart can help smooth over any issues and save the marriage. Here are some things to consider before filing for separation.
While it is true that separation is often a prelude to divorce, this is not always the case. The couple may think that some time apart, coupled with marriage counseling, could ultimately save the marriage. In situations where the intent of the separation is to give each spouse some room for thought and there are no compelling financial or legal reasons to make the separation official, there is little point in going through the process of filing for the separation. .
On the other hand, spouses hoping to patch things up can also benefit from taking the necessary steps to file for separation with the local court. This is especially true in situations where there are significant financial resources to consider or if formal arrangements need to be made about who the children will live with during the time of separation. Choosing to file a separation does not mean that there is a lack of trust between the spouses. But it’s an acknowledgment that making binding, legal arrangements ahead of time will help minimize the chances that one or both spouses will try to hide or otherwise prevent access to money or children if the situation appears to escalate to divorce.
While most couples filing for separation do not normally realize this in advance, the competent court will take steps to ensure that each spouse has sufficient resources to live a decent quality of life for the duration of the separation. Temporary custody arrangements are also in place, which makes the situation a little safer for the children. Also, most courts will require both spouses to agree to a separation before one is granted. If one spouse doesn’t want to file for separation and the other does, the only other legal option is usually to pursue a divorce.
As with many matters relating to the possible end of a marriage, the laws governing whether you can file for separation vary from one jurisdiction to another. Some have a residency requirement, while other jurisdictions have no such requirement. In almost all situations, the courts take oversight of all assets and make the decision on where the children will live. Unlike divorce, which sometimes involves a waiting period before becoming final, a separation is effective the moment a court grants the status.
The bottom line is that there may be compelling financial or other reasons for seeking separation, even if the intent is to work things out and avoid the end of the marriage. Both parties should get legal advice and know the laws governing legal separation in their location. Attorneys can help determine whether a legal separation is in the best interests of both parties, based on local law and the circumstances of the two parties involved.
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