Thursday, August 27, 2009
In most states, a legal separation can be achieved in one of two ways:
- Through a comprehensive agreement between the two parties
- By court decree
Whenever possible, you want to avoid the second option, since a court trial can be just as involved and expensive as a divorce trial. For the most part, the issues are the same, and once you're going through a trial, you might as well go for the divorce. It's the same work and the same cost, so you may as well finalize it and make it official.
In most cases, a legal separation is achieved through a negotiated settlement between both spouses, leading to a Separation Agreement, which is a formal contract that covers issues such as:
- Child custody
- Child support
- Spousal support
- Equitable distribution of marital property
- Life and health insurance
- A waiver of estates rights
Essentially, this agreement will cover any issue necessary to enable the couple to put their lives on separate tracks and move forward as individuals. Naturally, the agreement provides that the couple will live separate and apart, free from the authority and control of one another, as if each were single and unmarried.
It is a contract where the terms must be strictly followed. The only restriction for each party living under the terms this agreement is that they may not get re-married because they are not yet legally divorced. However, each person is free to date and even live with someone else, since all of the issues of the separation have already been dealt with. A court may not change the terms of a written separation agreement unless it determines that the terms of the original agreement are unconscionable.
Most states have laws that allow either party involved in the separation agreement to obtain an uncontested divorce after living separate and apart for a required period of time. At this time, the terms and provisions of the separation agreement will become the basis for the divorce agreement. The judge will simply have to sign the final divorce decree.
If you and your estranged spouse are able to work out a separation agreement amicably, it is a much better way to go about your divorce. You and your spouse will have negotiated all of the terms without the intervention of the court. This enables you to maintain control over the entire process.