Going Through A Legal Separation

Ending a marriage is never easy, but it can be a lot harder if you don't prepare. If and your spouse are considering legal separation, the following tips will help you to make the right decisions.

Start with a Separation Agreement

The first step in pursuing legal separation is to sign a separation agreement. Ordinarily, until you have obtained legal separation or divorce, the state still considers your property to be jointly owned. Any new assets that you obtain or debts that your spouse accumulates are marital property and must be divided evenly between you and your spouse. With a separation agreement, however, you and your spouse agree to stop holding your property in common. Any assets you accumulate after you sign the separation agreement belong to you.

Separation agreements are particularly important if you are not sure that you want to legally separate, or if you expect the separation process to take a long time.

Understand the Finances of Separation

If you and your spouse are convinced that you cannot save your marriage, you still have to decide whether to separate or to divorce. Many choose legal separation for personal or religious reasons, but separation also has financial implications, including:

  • Taxes- The tax code treats married couples differently than single individuals, meaning that you may end up paying higher taxes if you get a divorce. Under legal separation, however, you and your spouse are still technically married. You can thus continue to take advantage of marital tax deductions, joint filing, and other benefits. At the same time, if you have to make spousal support payments, a legal separation agreement allows you to deduct those payments from your taxes just as you would if you got a divorce.

  • Health Insurance- If you receive health insurance from your spouse's employer, legal separation may make it easier for you to remain on that plan. If you get a divorce, your spouse's employer will eliminate or severely curtail your coverage, so it's often better to separate and remain legally married. Some employers, however, regard legal separation and divorce as the same thing, so check the fine print on your insurance agreement.

  • Social Security- If you and your spouse have been married for less than ten years, separating until you meet the ten year mark will help you obtain higher social security benefits. Once you have been legally married for ten years, you are entitled to receive social security benefits at age 62 equal to half of what your ex-spouse is entitled to based on his or her work.

  • Military Benefits- If your spouse is in the military, you can collect military benefits after you divorce, but only if you have been married for at least ten years. As with Social Security, if you and your spouse have not yet been married for ten years, it may behoove you to postpone your divorce until that point and legally separate in the meantime.

  • Pensions- Many pension plans pay greater benefits to the pensioner's spouse the longer the two have been married. Depending on the terms of your spouse's pension plan, legal separation may allow you to increase the amount of pension money you receive.

We must stress that legal separation is not a financial silver bullet. Depending on the amount of money you and your spouse make, the terms of your pension and health insurance agreements and the nature of your assets, divorce may be better for your finances. Consult a family law attorney before you decide whether to divorce or separate.

Consider Other Factors

Besides the financial implications, make sure to account for the following issues when deciding between divorce and separation:

  • Name Changes- Under legal separation, you and your spouse are still legally married. As such, if either of you changed your surname when you got married, separation does not allow you to resume your original name.

  • Religious Doctrine- Many religious organizations, notably the Roman Catholic Church, do not approve of divorce but do allow their members to legally separate. Separation may thus be preferable if you want to remain in good standing at your church.

  • Reconciliation- It's easier to back out of a legal separation agreement than it is to get remarried. If you and your partner think there is a strong chance that you will want to get back together, separation is preferable.

Make Sure You Meet the Residency Requirements

In order to separate under Florida law, either you or your spouse must have lived in Florida for at least six months. It is not necessary for both of you to have lived in the state. If neither you nor your spouse meets the residency requirement, Florida's courts do not have jurisdiction over your marriage, and your petition for separation will be turned down. In this scenario, you can either wait until one of you has lived in Florida for six months, or attempt to divorce in a state where you do meet the requirements.

File for Separation

Once you have satisfied the above requirements, it is time to file for separation. Most people have the attorney who will represent them take care of this process, but if you plan to represent yourself, you can file on your own. If you and your spouse are filing for separation together, you should simultaneously file an agreement that delineates finances, child custody, visitation rights, and all other issues that may arise as a result of your separation. If on the other hand you file for separation without your spouse's consent, you will have to serve your spouse a separation petition. Your spouse will then have time to asset to or challenge your petition. The two of you will then work out the aforementioned separation issues through mediation or in court.

Kenny Leigh & Associates is committed to defending men embroiled in difficult divorce, separation, or custody battles. Visit our website today to learn more about succeeding in family court.

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