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Sometimes marriages do not succeed. Despite the efforts of husband and wife, and perhaps the
help of counselors and clergy, there is nothing to do but end the relationship. And, as the state
was involved in creating the marriage, so too it becomes involved in dissolving it.




Separation and Separate Maintenance

What is a legal separation?


A "legal separation" means that the husband and wife are living separately, and they have
formalized the arrangement by a court order or a written agreement between themselves. The
order or agreement usually will state that the parties are living separately, and it will specify what
support, if any, one spouse will pay the other. If the husband and wife have minor children, the
agreement or court order usually specifies arrangements regarding custody or visitation.
A legal separation is not the same as a divorce. A separation recognizes the possibility
that the couple might reunite. In any case, its terms can be modified by the parties or the court
when the couple divorce. Most importantly, persons who are legally separated may not
remarry. They must wait until a divorce is final before marrying again.

Does a person have to be legally separated before obtaining a divorce?

No. In most states a couple can proceed straight to a divorce without first seeking a legal
separation. While waiting for the divorce, the couple might live separately (without a formal
agreement) or, in some states, they could even live together pending the final divorce.

Is there an advantage to a legal separation?


That depends on the needs of the parties. A legal separation offers a structure for the parties
while they are waiting for a divorce (or while they are considering a divorce). If one spouse is
paying support for the other spouse or for the children, the spouse receiving the support may
want the terms put in writing. Similarly, one or both parties may want a fixed schedule of who
will be with the children at what times. If these terms are part of a written agreement or court
order, the parties know what to count on, and a party can go to court to seek enforcement if the
other does not abide by the agreement or order.

Are there any tax advantages to a legal separation?

Yes, potentially. If one spouse is paying support for the other, the payer can deduct that
money from his or her income for tax purposes. The payment will then be considered taxable
income to the recipient. If the payer is in a higher tax bracket than the recipient, this will reduce
the couple's combined tax liability. In any case, it will reduce the payer's taxes and raise the
recipient's. To obtain such a deduction, the parties must be legally separated by written
agreement or court order. The deduction is not available for those who have an informal
separation.

Why would a spouse who is receiving support agree to this arrangement if it results
in more taxes for her or him and a tax advantage to the other spouse?


The tax advantage to the payer may encourage paying support in the first place and it may
result in a greater amount of support. Some couples and their lawyers may calculate a tentative
amount of support that would be paid without any tax benefit to the payer. Then they calculate
the tax benefit of creating a deduction for the payer and income for the recipient. They split the
tax savings by increasing the level of support. The increased support usually exceeds the added
taxes the recipient will pay, and the payer will have less money out-of-pocket for the year
because of the tax savings.

Are there psychological advantages of a legal separation?

For some people, yes. Some men and women may want to separate but are not sure they
want to go through a divorce. The separation might be a "trial separation"--relieving some
immediate pressures while the husband and wife sort out what they want to do with their lives.
And a formal legal separation may provide some structure, security, and financial advantages
during the period of separation.