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What is legal separation?

A state-recognized marital status similar to divorce — but you can’t remarry.

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Legal separation allows you and your spouse to go your separate ways by filing a few legal documents with the court and writing up a separation agreement. While there are some advantages to a legal separation over a divorce, the process is by no means cheaper or faster. And you can’t remarry down the road without eventually getting divorced.

What is legal separation?

A legal separation is a court order that lays out each spouse’s rights and responsibilities while you’re still legally married, but living apart. It’s an alternative to divorce, and a mandatory requirement in some states before a court will even grant you a divorce.

With a legal separation, you’re not free to remarry, but you can move forward as a single person. You’ll separate your finances and property, and work out child custody and a visitation schedule if you have minor children. The court order may also decide separation maintenance — where one spouse continues to support the other financially, similar to alimony and child support.

How much does legal separation cost?

Legal separation can cost anywhere from $1,000 to $100,000. Your total cost largely depends on whether you and your spouse can agree to the terms of separation and if you decide to lawyer up.

Attorney fees average $270 an hour, according to a 2019 Martindale-Nolo Research survey. Some couples choose to skip the lawyers and use a do-it-yourself online service instead.

Where you live can also greatly affect legal separation expenses. For example, court fees vary by state. And third-party professional services, such as accountants and real estate appraisers, can also run up the cost.

How long does a legal separation take?

A legal separation takes eight to 10 months, on average. State law can significantly speed up or slow down the process. For example, some states have a mandatory waiting period before a court will finalize your legal separation.

If your case requires litigation — where a judge resolves issues in your separation agreement, it’ll likely take at least one year to get a legal separation. You’ll be at the mercy of the court’s schedule, and a court hearing may also involve time-consuming steps, such as temporary orders or discovery.

Are there other types of separation?

Aside from legal separation, there are two other types of separation: trial and permanent. A trial separation is an agreement between you and your spouse to take a break from the marriage, with the possibility of reconciliation. Although you may choose to live apart, all the same legal rules apply as if you were married and living together.

A permanent separation is when there is no saving the marriage, but you aren’t yet divorced. In some states, a permanent separation could change property rights — for example, assets and debts you acquired during the separation period may only belong to you.

Can I get legally separated in my state?

Each state has its own procedures and name for legal separation. Check your state’s laws to find out what requirements you’ll need before you can file for legal separation or its equivalent.

What states do not allow legal separation?

Not every state has a formal process for legal separation. While the following states may have a concept of separation, it’s not a permanent legal status:

  • Delaware
  • Florida
  • Georgia
  • Massachusetts
  • Michigan
  • Mississippi
  • Pennsylvania
  • South Carolina
  • North Carolina
  • Texas
  • Virginia

How do I get legally separated?

A legal separation follows a similar procedure as a divorce. Here’s what you’ll need to do:

  1. Confirm that you qualify for a legal separation, including your state’s residency requirement.
  2. File a legal separation petition and separation agreement with the court.
  3. Serve your spouse the documents.
  4. Resolve any issues in the separation agreement.
  5. Sign the legal forms. Some states require a notarized signature.
  6. Take the agreement to the courthouse to make it official.

Compare online services for legal separation

If you want to skip the attorney fees, consider an online legal separation service.

Name Product Cost Includes filing papers with court? File without spouse Legal assistance available Customer service
3 Step Divorce
$299 - $336
No - you must file and pay court fees
Yes
No
Phone, Email
File within one business day of your start date with 3StepDivorce and qualify for a $50 cash rebate. Payment plans available.
LegalZoom online divorce
$499
No - you must file and pay court fees
Yes
Yes
Phone, Email, Live chat
File for an uncontested divorce online or find legal resources to help guide you through the divorce process.
OnlineDivorce.com
$139
No - you must file and pay court fees
Yes
No
Phone, Email
Ready-to-file divorce forms for one flat fee. Step-by-step directions to help simplify uncontested divorces.
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Compare up to 4 providers

Pros and cons of legal separation

  • Insurance and Social Security benefits. Both you and your spouse can keep your health insurance, life insurance and even Social Security benefits if you’ve been married for at least 10 years.
  • Potential tax benefits. Since a legal separation leaves the marriage intact, you can still file your taxes jointly, which may yield a few tax benefits.
  • Adjustment period. Gives you the opportunity to try a legal separation before going straight to divorce, which can be especially helpful if minor children are involved.
  • Alternative to divorce. If you have religious or ethical issues with divorce, a separation maintains the legal status of the marriage while still living separately.
  • Costly. A legal separation may be just as time-consuming and expensive as a divorce.
  • Cannot remarry. Even though you and your spouse are living separate lives, you cannot remarry.
  • Separate process from divorce. If you eventually decide you want to end the marriage entirely, you’ll need to start the entire legal process all over again for divorce. That also means twice the expenses.

Legal separation vs. divorce

While legal separation and divorce allow you and your spouse to live apart, there are fundamental differences between these two legal statuses.

Legal separationDivorce
Estimated costVaries greatly depending on if you’re in agreement on termsVaries greatly depending on if you’re in agreement on terms
Length of time8 to 10 months12 months
Still marriedYesNo
Financial advantages
  • Potential tax benefits
  • Social security benefits
  • Health insurance
  • Life insurance
  • Spousal military benefits
  • Potential tax benefits
  • Not liable for your spouse’s debts after marriage
  • Your spouse is entitled to less of your retirement benefits
Leaves door open for reconciliationYesNo

When to choose legal separation over divorce

A legal separation might be a good option if you’re not ready for divorce yet and still have hope to save the marriage. Some couples choose a legal separation to maintain spousal benefits, or until they reach the 10-year benchmark to collect spousal Social Security benefits.

But if you know that divorce is inevitable, you might want to save yourself the extra financial step of legal separation. And an online divorce service can save you pricey attorney fees if your divorce is uncontested.

Bottom line

A legal separation allows you to remain married and maintain a few spousal benefits, such as health insurance and Social Security benefits. It also divvies up your marital finances and property. But it doesn’t end a marriage — meaning you can’t get remarried down the road without eventually getting a divorce.

If you intend to break ties permanently, you might consider a divorce instead.

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