Many people who are considering the difficult notion of a divorce, often ask whether there is something less final or upsetting to their spouse or their children than actually filing for a divorce. Very often the question is asked whether they can file for a “legal separation” to see how things may work without both parties hiring lawyers and filing divorce papers. Generally, the law looks at “physical separation,” not a “legal separation” of spouses when determining whether there are legal rights (or obligations) of the parties. Those rights could include filing for custody of the children, the right to file for child or spousal support, or for a divorce itself. The word “separation” can have different meanings under different circumstances, but it usually involves the issue of “physical” separation, not “legal” separation of spouses.
For example, in order to file for custody of the children or to file for child support, there needs to be a physical separation (two separate households) of the parents. Generally the court will not act on a claim for custody or child support if both parties still live in the same house. However, spouses can be considered separated while living in the same house for purposes of a divorce action. The idea of “separate lives same roof” can allow spouses to financially maintain one household instead of two while a divorce action is pending, provided the parties are able to live calmly and reasonably under these conditions. Understandably, this very often proves difficult, if not impossible to do.
If someone is considering a physical separation from their spouse, it is important to meet with a domestic relations attorney prior to the separation and not afterwards, if possible. More often than not, how parties initially separate sets the tone for the length, expense and impact of a divorce action. The period of time surrounding a separation can be a very emotionally and financially difficult time. The more information you can get about what your legal rights and obligations may be if you physically separate, the more you will understand the issues and procedures involved.