Family Law,Separation,Anulment and Divorce

Separation and Separate Maintenance
What is a legal separation?
A legal separation allows the husband and wife to live separately and formalize the arrangement by a court order or a written agreement. The order or agreement 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 will set out 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 divorces. Most important, people who are legally separated may not remarry. They must wait until a divorce is final before marrying again.
When a husband and wife legally separate, they no longer accumulate community or marital property. The property acquired after the legal separation will be considered each partner's separate or nonmarital property.
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. A few states do require a period of separation before a divorce can be granted.
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. In addition, if one or both of the parties wish to obtain a religious divorce or annulment, a legal separation may provide useful transition while waiting for action by the religious tribunal. After the religious annulment or divorce is granted, the legal divorce may proceed. Depending on the wishes of the parties and tenets of the religion, the legal divorce could precede the religious divorce or annulment.
Most medical plans permit a legally separated spouse to continue to be covered in a family plan without additional cost. The parties may also file joint income tax returns if they so desire.
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 the payment of 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 to a legal separation?
For some people, yes. Some couples 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. A formal legal separation may provide some structure, security, and financial advantages during the period of separation. It also may meet the husband's or wife's religious requirements.