How To Separate In A Marriage

Written by J. Hirby and Fact Checked by The Law Dictionary Staff  

Legal separation can be as long and drawn out a process as both parties wish to make it. There are many ways to separate, and your own particular situation will determine how best to go about the process.

Generally speaking, there are three types of separation, with most falling along a continuum between them. These types are:

  • Mutual, amicable separation
  • Separation with contested assets
  • Emergency separation due to abuse or imminent harm

Keep in mind that most separations are a blend of two of these three options.

How to Amicably Separate

Amicable separation is perhaps the easiest type of separation there is. You will be required to fill out paperwork regarding your separation agreement detailing which party will receive which joint assets. This will be accompanied by a statement of intent to separate as well as an explanation of the cause for the separation, which is often simply stated as “irreconcilable differences.” You may use a lawyer or not, depending on your level of trust.

Amicably separating couples often have to file waivers indicating that they waive their right to be represented individually by lawyers, that they don’t need to give the other party two weeks to respond to the notice of separation and that they trust the other party’s financial accounting.

Finally, you will bring your separation agreement before a judge, who will sign a Decree of Dissolution of Marriage or similar form that determines you to be legally separated.

How to Separate with Contested Assets

If you have contested assets, the process will be similar to the amicable divorce, except both parties will probably have lawyers. If possible, an agreement will be hashed out between the lawyers consulting with either party. There will have to be compromises made. If compromises are unable to be made, both parties will have to submit paperwork to a judge who will make the final declarations regarding custody, assets and support payments.

How to Get an Emergency Separation

If you are in danger and need to separate immediately due to imminent harm, either party may file paperwork “ex parte” meaning that the other party doesn’t need to be notified of the decision. You will need to provide evidence of danger such as medical reports, police reports, correspondence or other documentation to grant a temporary order of separation as well as orders of protection. However, because this is not permanent, you and your lawyer will need to go about filing more permanent separation documents that may end up looking like a divorce with contested assets.

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