Many people considering the notion of a divorce often ask whether the opportunity to “separate” is less final than filing for a divorce. Very often the question is asked whether they can file for a “legal separation”. By this, they are trying to avoid both parties hiring lawyers and filing divorce papers. Generally, the law looks at “physical separation,” not a “legal separation” of spouses when determining the legal rights of the parties. Those rights could include filing for custody of the children, filing for child or spousal support, or for a divorce itself. The word “separation” can have different meanings under different circumstances, but it usually involves “physical” separation, not “legal” separation of spouses.

In order to file for child custody or child support, there needs to be a physical separation (two separate households). Generally the court will not act on a claim 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 maintain one household  while a divorce action is pending. Understandably, this very often proves difficult, if not impossible to do.

What should you do if you want to physically separate?

If someone is considering a physical separation from their spouse, it is important to meet with a domestic relations attorney. This should be 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. 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 rights and obligations are, the more you will understand the issues.

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