Understanding The Obligations Of A Legal Separation
With a total of 22 states requiring some duration of legal separation or waiting period prior to a divorce, it's important to get all the facts before you start the paperwork. If you live in one of these states, it's a good idea to first identify the minimum possible duration required by your state statutes, and then to do everything possible to qualify for that minimum. That may still leave you with several months or more before you divorce can be finalized, so make sure your separation agreement contains everything you intend it to.
Conditions of Separation
While still legally married during a separation, certain conditions are often included in the official documents which must be met for the entire duration. The most important of these involves living separately. While special circumstances may be recognized by some judges, the general consensus is that a legal separation can only be recognized if both spouses are no longer living in the same house.
Other conditions will include monetary support, child custody, child visitation, and division of property. While individual situations can play a role in the final determination, your initial position should include room to negotiate. Legal separation is intended to be a set of agreed upon conditions that both parties can accept and live with for the duration of the separation, so be willing to make compromises and concessions during this phase.
How This Affects Your Divorce Decree
Here is where things can get tricky, because it's unusual for the same judge to deal with both the separation agreement and the divorce proceedings. Often, the only thing your divorce judge will have to go on is the initial agreement you and your spouse signed, and how closely you both abided by it. In most cases, unless there are objections, your divorce decree and your separation agreement are usually very similar in their wording.
Failing to uphold your end of the legal separation agreement can carry serious penalties though, and in the case of separate living arrangements it can even end up restarting the separation period. You're obligated to make every effort to comply in good faith with the order laid out in your separation agreement. It's not uncommon for judges to exercise their discretion in altering the final terms of your divorce if one party has seriously lapsed in their compliance with the original separation order.
Your separation period is all about waiting and finding a way to remain civil with your spouse. Negotiate in good faith, be equitable rather than vindictive, and you'll find it easier to get through the final divorce process. Whether you go in with an attorney or not, your commitment will play the greatest role in the final outcome.