by Robin Tidwell

Created on: August 10, 2008   Last Updated: November 04, 2008

Technically, there are two types of separation, legal and physical. A legal separation is documented and court-ordered and is usually a precursor to divorce. Many couples opt for a physical separation which is simply a change of residence for one party; this may also include property division, but usually merely lays down the rules for distribution of bills and responsibilities.

Most courts will recognize the validity of a physical separation, prior to divorce, but some require a legal separation. When considering a separation, one must do the research for their particular state and be sure to cover all potential legalities, as well as any inherent and ongoing issues. The presence of children, too, requires additional safeguards for both parties.

John and Mary were married for just two years when they separated; Mary asked John to leave the home, as protection for her and their daughter if it did indeed come to divorce. Generally, if one spouse leaves the home it can be considered abandonment of that home.

John agreed to pay Mary a set amount for child support, and he was allowed visitation with their daughter on a call-ahead basis. Nothing was put into writing, and no court was involved. In their state, no legal separation was required.

However, when the divorce papers were filed, the judge issued a temporary child support order which was less than what Mary had been receiving. The final divorce decree itself was very detailed and after many months of drastically lowered income, Mary and their daughter were back on their feet. This could have been avoided by a legal separation agreement.

Bill and Sue separated after more than twenty years of marriage. They attempted to file a legal separation agreement which included support for their one remaining minor child, but elected to both stay in the marital home. The judge refused to sign the agreement, as their living arrangements were broad and open to change and interpretation.

They elected to retain their unique terms and opted to negotiate all aspects of their pending divorce themselves. The result was that Sue still felt married and actually did undertake all the duties and responsibilities that she had prior to the separation, while Bill felt free to portray himself as a single man. The assets, too, were divided unfairly due to lack of protection for Sue, a non-working wife.

This could have been avoided had legal sanctions been in place to further identify responsibilities and allocation of property, as well as

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