What does it mean to be “Legally Separated”?

Legally Separated can be that you and your spouse have entered into a property settlement agreement or a separation agreement that has been entered by consent of the parties into the court and with an order that the parties must comply with the terms and conditions of the agreement, or that you have obtained a limited divorce (Often this agreement is the same or similar to the terms of one or both of the above identified agreements but you cannot remarry because you have not received an absolute divorce), or you have received a Domestic Violence Final Order wherein your spouse has been removed from living in the marital residence or on a property in which you lived together. You then have exclusive use and possession of the marital residence. Often in final orders of domestic violence, the wrongful spouse must not contact you for a period one year. The above are not examples of all possible circumstances where a person is legally separated. You should see also the IRS instructions for the preparation of a federal individual income tax return.

A non-contested divorce means that there will not be a contest at court and after one year of separation without cohabitation, either party can file with the court for an absolute divorce.

This article, for the most part, deals with non-contested cases, except for domestic violence. “Non-contested” means that the property agreement or the separation agreement will be the vehicle used to obtain an absolute divorce.

Why do people “legally separate” or separate?

The main reason for the separation of the parties is to establish a one-year separation in order to establish a ground for divorce. There are many reasons why people separate, including but not limited to the inability to get along, frequent verbal arguments or domestic violence, or to prevent children from hearing their parents constantly in battles. Some children believe they are at fault or become very upset when hearing their parents in continuing battles.

The elements of obtaining a divorce based upon being legally separated * for one year are as follows:

  1. No cohabitation, which includes not living under the same roof and not being intimate. You must not compromise yourself by creating an opportunity for people to perceive that you are together and therefore have the opportunity to be intimate, thereby creating a situation where in one party asserts through lying that you were intimate. Such a situation and/or accusation could prevent the absolute divorce from occurring.

  2. Being separated for twelve continuous months. The one year separation may include the parties signing a property settlement agreement either before or after the physical separation.

  3. No reasonable hope of reconciliation.

* It is not necessary to have a property settlement agreement in order to file for divorce, however for parties who have children, joint debt, pensions, deferred compensation and other future benefits, not to have a property settlement agreement will more often cause serious problems, such as constant stress, financial problems, and too many future problems. Some individuals wait a year after separation to file for divorce. We strongly consider that to be an extremely poor choice.

The Process

After one year, one of the parties will file a court pleading called a complaint. Part of the complaint is the property settlement agreement. A lawyer knows how to properly prepare the complaint. If not properly prepared, the result can be additional problems are created. The non-filing party is supposed to file an answer and that document needs to be properly prepared as well.

The court, upon request, will issue a Magistrate’s Hearing date and on that date at least one of the parties needs to go forward with testimony to prove the elements of the divorce and have a corroborating witness to support the testimony and the facts presented to the court.

The magistrate, who used to be called the master, does not have the authority of a judge, however the magistrate may prepare an order to present to the judge and when the judge approves that order, the parties will become divorced.