James R. Balmforth: Can You Get Alimony In A Legal Separation?

Most people associate separate maintenance or alimony with divorce. However, it is possible to obtain alimony with a legal separation. Separate maintenance is similar to alimony or spousal support, but it’s not called alimony because the couple is still legally married. The factors used to determine separate maintenance are similar to those for determining alimony, and will depend entirely on the laws of your state. The basic idea is that one spouse may need financial support after a legal separation due to a lower earning capacity. If so, the higher earning spouse will have to provide support for at least some period of time: the amount and duration of the payments will depend on the spouses’ incomes, earning abilities, ages, the length of the marriage, and a variety of other state specific factors. Typically, when married couples believe that their marriage can no longer be saved, they choose to file for divorce. However, couples that want a break to work on their marriage and those who are opposed to divorce have the option to separate. Separate maintenance (which is very similar to alimony) is a way for one spouse to continue to support the other before, during and after a legal separation.

Almost all married couples have arguments. Some, however, experience so many arguments that they become the norm rather than the exception; these fights may be the result of or a symptom of serious marital problems. Some couples go to counseling, others try to work out their problems on their own, and some decide that it’s best to work on their issues while one spouse is living outside of the family home. The separation may be for a specific time or long-term. For example, a trial separation is when married couples separate for a couples months or take a break, usually with the intention of reconciling. Thus, a trial separation doesn’t typically involve lawyers or court appearances. However, once one spouse (or both) decides that there is no chance of getting back together, it’s safe to say the marriage is over. Although legal separation is not very common, it can be used in cases where the couple is opposed to divorce for a variety of reasons, including religious reasons (where the couple’s church does not permit divorce), or because the couple wishes to continue receiving benefits that married couples receive (health or tax benefits).

If you’re choosing a separation over divorce to continue receiving benefits, it’s important to determine whether a legal separation will trigger termination of the particular benefit. Whatever the reason, if a couple wants to end their union, but avoid a divorce, they can seek to have their separation officially recognized by a court. In order to do so, they will need to obtain a legal separation through a court process that is very similar to divorce, but which does not completely break the bonds of marriage. Married couples that want to legally separate must agree how to divide property and debts. And if they have children, they need to work out their child custody and support issues. However, when couples can’t agree, a judge will impose a decision on all of those martial issues. What a judge won’t do is issue a divorce decree. Thus, you and your spouse will remain married and you are not free to remarry unless and until you obtain a divorce.

Spousal Support During Separation

Similar to divorce, legal separation involves addressing marital assets, debts, child custody and visitation, child support and spousal support. When the two spouses can work together to reach agreement about the respective terms, they will often prepare and submit a legal separation agreement to the court. This is certainly a preferred route as it eliminates much of the tension, emotions, and costs when the couple’s disagreements result in the court making the decision. When it comes to spousal support (also commonly referred to as alimony) it is usually considered a factor of divorce. In a legal separation, some states may have laws making it possible to obtain separate maintenance, which is similar to alimony (alimony involves no longer being legally married). Since states have the latitude when it comes to support laws, it is important to recognize that the laws will vary. In essence, the premise is that one spouse will require some degree of financial support after the legal separation. Factors such as incomes, earning capacity, length of marriage, age and other items are commonly reviewed to establish whether the support will be ordered, and if so, the amount and duration of payments. Need is one of the primary factors that a judge is likely to consider when reviewing a request for temporary support If the spouse has other funds, such as outside income or savings, then a judge usually wouldn’t grant temporary alimony because the need does not exist.

When a judge looks at whether the other spouse can afford to pay temporary support, the judge is actually looking at two factors:

• Does the other spouse have the money available to pay temporary support?
• And how will a support award affect this spouse’s ability to pay for his or her own necessities and maintain his or her own standard of living?

When determining whether one spouse has the ability to pay, the judge will look at that person’s income, bonuses and overtime, as well as Social Security benefits and other income. If the judge agrees with the request for temporary support, the ruling will explain how much must be paid, how frequently it must be paid, and how long the payments will last. Judges typically will not grant retroactive requests for temporary support.

Requesting Modification of the Temporary Support

Only in rare situations will a court agree to change the amount of temporary support. If you request such a change, you will need to show a compelling reason why it should be modified. The courts are likely to consider your request if it is being made because of a change in financial circumstances. For example, a modification request might be granted if one spouse has involuntarily lost his or her job or if an illness has made it difficult for one spouse to work.

Separation, instead of divorce, is an option that can be pursued by a married couple when their marriage is falling apart. Legal separation is different from a divorce. Being legally separated means spouses can live apart while retaining their marital status. The same issues addressed in a divorce are also addressed in a legal separation agreement. This can protect the interests of both spouses until a decision is reached on whether to file for a divorce or not. Following legal separation with a divorce means that a court judge will assume that both parties were satisfied with the agreement and will likely carry the agreement over to the divorce settlement. This means it’s very important to arrive at a separation agreement you can live with long term.

The main difference between separation and divorce is that divorce ends the marriage. Spouses return to an unmarried status and are thus are allowed to remarry. Separation let couples keep their married status while acknowledging that they are no longer living together. The court order granting legal separation contains the rights and responsibilities of both parties during this period, and also resolves all relevant legal issues regarding the marriage. The couple signs an agreement regarding property or asset distribution, child custody, child visitation, child support, alimony, attorney fees and personal conduct.

Benefits of Separation over Divorce

Legally separated couples are still considered married. This married status actually provides benefits to both parties, and is a good reason for married couples to become separated instead of divorced.

Here are some situations where separation is better than divorce:
• A spouse can retain the benefits of the couple’s health care plan, especially if it is under the name of the other party. Getting divorced usually terminates this coverage (depends on the terms of the divorce settlement).

• Some religious beliefs and institutions have conflicting ideas on divorce. Couples who wish to live apart can choose to have a legal separation agreement in order to stay married for the sake of their religion.

• Military spouses gain benefits from the Uniformed Services Former Spouse Protection Act if they remain married for at least 10 years.

• Remaining married for 10 years or more also qualifies couples for certain social security benefits.

• Taxes are must be filed singly after a divorce.

• Separation allows time for both parties to resolve their differences to either resume the marriage, or finally settle on divorce and move on with their lives.

Other issues such as loan or mortgage payments and joint savings and checking accounts can be resolved in the legal separation agreement. An outline of which portion of mortgage payments and maintenance fees of the marital home are to be paid by which spouse can be included. Access to the couple’s bank accounts, or the need to close it and open separate accounts, can also be defined.

Reasons Couples Separate

Although it is difficult to mention each and every reason, the most commonly occurring instances for separation are illustrated below.
• Infidelity
• Lack of proper communication
• Addiction to drugs, alcohol or other substances
• Getting isolated from family and friends
• Financial instability
• When the power of decision-making rests with one partner
• Over possessiveness
• Physical/mental abuse targeted by one partner to the other
• Lack of physical/intellectual compatibility
• Lowering self-esteem levels, leading to lack of self-confidence
• Severe health problems of one partner

Some Ways to Reconcile

Similarly, the responsibility of reconciling has to be owned by both the partners. Instead of blaming one another for their shortcomings or faults, the couples should rather focus on how to reignite the love which brought them together. There are some simple ways to achieve this, which could save a marriage that was on the brink of divorce. When a married couple decides to separate, the people in their lives often see it as the first step toward divorce. However, this isn’t necessarily the case. Some couples find that a temporary separation is just what they needed to work on their marriage and reconnect, while others might find that just remaining separated without ever taking that further step into divorce suits them just fine. It really all depends on the couple and what they come to realize is best for them.

Separation, physical or legal, doesn’t always lead to divorce. Sometimes separation can be a time of forgiveness and renewed commitment. Many couples separate in hopes of saving a marriage, and sometimes, that can work. After all, just getting distance from a painful, antagonistic situation can provide you with enough perspective to come back together weeks or months later and sort things out.

As a step before divorce, physical separation has emotional and legal implications that you need to understand. Decisions made during separation often become stamped in stone, and anyone separating without the appropriate strategizing and protections can suffer unpleasant repercussions for years. Indeed, the legal arrangements made for separation often can’t be renegotiated for the divorce; those who decide to let things, believe they will have another chance at a fairer deal later, are sorely disappointed most of the time. The emotional tenor of your breakup and, by extension, your separation, can impact the legal outcome of your divorce. Separation is such a naturally turbulent and overwhelming period that it lends itself to rash decisions driven by emotions like guilt and anger. In a cooler moment, you may have made a more strategic deal, but you will not generally have the luxury of negotiating twice. If you’re separating, you should attend to the fine print of your future life now. There are couples who treat separation casually and live apart without any formal legal agreement. If you and your spouse are quite certain that your separation is temporary and that you will be using the time to reconcile, a casual attitude may work well. You can date your spouse; even have sex with your spouse because as far as you’re concerned, divorce is not in the cards.

Remember, the process is painful. If you’re like most people, you won’t pass quickly through the emotional gauntlet of separation. Typically, psychologists say, the first year following separation is the most difficult. During this period, you’re prey to mood swings, sadness, feelings of loss and anger. If you remain on this emotional roller coaster for more than a year, however, you may not be progressing quickly enough. It’s time to seek counseling or some other form of psychological help.

Some Advantages of Legal Separation

Legal separation has many benefits and advantages, including providing parameters for co-parenting, child support, and spousal support while maintaining the status of being married. Legal separation also leaves the door open for reconciling or resuming the marriage. Legal separation, which is a contractually defined and court-honored agreement between a couple that has chosen to live apart but opted to remain legally married, is also often pursued when the parties want to stay married for religious reasons, when they want the advantage of documentation of spousal support payments (for income tax reasons), when they want to maintain various insurance coverage, or when they do not want to wait for the state’s statutory period for termination of marital status.

The legal requirements for a divorce vary from state to state. For instance, some states have a no-fault divorce with absolutely no waiting period, but others require couples to remain apart a year and a day before they may file for a divorce. In the states that require couples to live apart, a legal separation provides the evidence necessary to prove the requirement is met. Without a legal separation document, spouses opposed to a divorce could argue that any sexual relations between the spouses or short-term cohabitation in the same residence during the required period nullified the separation time. A legal separation prevents such arguments from being presented. A legal separation also gives the parties an opportunity to set out the terms of their divorce in advance. A legal separation agreement can outline whatever terms the couple feels are important, but it typically focuses on details such as who lives where and who agrees to take possession of what property during the separation. A separation agreement can also include information about alimony payments, debts, child custody arrangements, and marriage counseling. The document should be signed by both spouses and it may be wise to go over it with a divorce attorney. Should the couple get back together again after separating, they can void the separation agreement at that time. Should they go on to divorce; the divorce documentation will take over where the separation contract left off. For some religions, divorce is either forbidden or unrecognized. In fact, some religions will even go so far as to excommunicate anyone who pursues a divorce especially those who remarry. This puts some couples in a difficult situation when considering their options. While a legally separated couple cannot remarry, the legal separation will allow the couple the opportunity to live apart.

Get Legal Help

Not every legal separation is the same, and there are several steps to take to ensure that your legal separation period is well spent. For starters, avoid fighting and gossiping about your spouse during the separation. Whether a divorce is inevitable or not, these actions are never emotionally beneficial. Additionally, some states require counseling before a divorce may be filed, so it makes sense to get the counseling done during the separation. Finally, take your legal separation agreement seriously, as some judges will simply transfer the agreement over as your divorce terms. In other words, be prepared to live with the terms of your legal separation permanently.