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Protecting Your Rights During a Legal Separation

Legal separation is where a married couple either enters into an agreement known as a separation agreement or gets a determination from the Court which would to allow the couple to live separately and end their marital obligations, without technically ending the marriage. A legally separated couple cannot remarry. However, this agreement (or determination by the Court) will provide for the division of assets, custody, support and all issues that will be raised in a divorce. However, the spouses who are legally separated still have certain rights. It is important to be aware of your rights if you are legally separated from your spouse so you can protect them to the fullest extent.

Some of those rights include:

  • Child custody and visitation: Unless a court decides otherwise, a legal separation will provide for custody and parenting time with your children.
  • Rights to jointly owned assets: Any assets owned jointly are still the property of both spouses unless specified in the legal separation. The largest example is the family home—while one spouse may have the right to remain in the marital home for a specified period of time known as “exclusive occupancy”, the home is still the property of both spouses unless they agree to a buyout.
  • Support: One spouse may be entitled to spousal maintenance payments, depending on the circumstances of the separation agreement. In addition, one parent can expect to receive child support money from the other, with the amount varying depending on the circumstances of each spouse’s finances. It will also provide for payment of child care and uncovered medical costs, including the cost of medical insurance premiums.

Legal separation can be a beneficial process for spouses with strict religious beliefs, or for spouses who are looking for a trial period before filing for divorce. However, once you are legally separated, if you choose to divorce, you do not get to “redo” the terms of the separation. In fact, after being legally separated for a year, you can do a conversion divorce whereby the terms of the separation are incorporated into a final divorce decree. You only need to prove that you have lived separate and apart for a year and that there is substantial compliance with the separation agreement. If you have any questions about your rights during a legal separation, contact an experienced divorce lawyer at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia LLP.