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.
Family Law
FAQ
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.
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