How to Handle Legal Separation Before Your Divorce


by Chris Torrone



Going through a separation is an emotional and uncertain process. You are dealing with how to untangle your finances, your living arrangements, and all the details that need to be worked out when there are children involved. It can be a time of high tension and big emotions as you grapple with how to move forward as you and your spouse consider getting divorced. If divorce becomes the best solution for the wellbeing of your family, then remember that how you handle your separation will set the tone for how your divorce will play out.

Here are the steps you can take to prepare for your divorce while handling your separation with grace and dignity.

File for legal separation

A legal separation is a binding document that can set a precedent for filing divorce papers, should you choose to do so. The main difference is that a legal separation still protects your marriage and legal rights. This is an important step to ensure that your legal protections remain intact. Because it sets a legal precedent, make sure that you do not agree to anything in your legal separation that you would not want to agree to when filing for divorce. 

You’ll start by filing a separation petition, and then filing a legal separation agreement. The agreement should cover areas such as child custody and support, how marital assets should be distributed, and living arrangements. It can even cover rules and guidelines related to dating other people. You can’t guarantee that your spouse will agree to everything, but be thoughtful in including everything you want to negotiate on before serving them. They will have X days to respond to your petition, and they have the right to counter-petition. 

This process can feel very much like a divorce proceeding, which can increase the likelihood of high emotions, anger, and sadness for both you and your spouse. As much as possible, work with your spouse to create a separation agreement that acknowledges both your needs and sets a tone of respect for further communication.

couple and lawyer working on legal separation

Protect your assets

If you have initiated the separation, your spouse may feel resentful or angry with you. They may assume that your separation will automatically lead to divorce and may try to “punish” you by being uncooperative. If communication breaks down or becomes contentious, or if you filed for legal separation due to abuse or infidelity, the most important step you can take is to protect your financial assets.

If you don’t already have separate bank accounts, you can set up your own and take steps to ensure that your income and other assets are protected. Remember that marital property laws still apply during a legal separation so consult with your lawyer on the best way to protect yourself legally while continuing to provide for yourself and your children. This is especially important if you have been a victim of spousal financial abuse or you have reason to believe that your spouse will engage in malicious dispensation of your mutual assets.

Document Communication

If your spouse becomes threatening in any way, you can insist that all further communication take place via email or through your lawyers. This allows you to keep a record of all communication that you can use in court if your spouse engages in verbal abuse or coercion. You can save voicemail recordings, but remember to consult with your lawyer about whether or not you can legally record phone calls.

Limiting your communication to written record also serves as a reminder to you to stay unemotional and to the point, when engaging with your spouse. Having that pause to decide what you want to communicate in written form can keep you from losing your temper, resorting to insults, or otherwise behaving in a way that your spouse could then use against you in court.

Maintain Stability

It is especially important, if you have children involved, that you maintain as much stability as possible during your separation. If you are the primary caregiver, it is likely that you will be the spouse that is allowed to remain in the family home. If this is something you desire, make that clear in your petition for separation. Keeping your children in a consistent physical location will help them as they process the other changes that your family is going through. 

Beyond protecting your children’s home environment, try to keep their schedules the same, between school, extra-curriculars, and seeing friends and family. Check in with them often to see how they are doing and let them know that they are safe and welcome to share their feelings. Assure them that it is okay to feel and express their emotions. 

Most importantly, don’t involve your children in the conflict with your spouse and never use them as middlemen to communicate. If your separation is amiable, work with your spouse and commit to presenting a united front with your children’s health and wellbeing as the priority. Research shows that children fare better when they are able to maintain a close relationship with both parents during a divorce. (The exception is, of course, situations where abuse has taken place and you have serious concerns about the safety of your children when they are alone with your spouse. Work with your lawyer to put the necessary legal protections in place to ensure their safety.)

Don’t forget to take care of yourself during your separation. It can be very easy to focus solely on the needs of your children and neglect your own wellbeing. But you will also fare better if you make it a priority to maintain stability in your own life as much as possible. Whether this is through your work, activities with your children, working out, volunteering, or hobbies, find outlets that allow you to feel like yourself and give you a break from the emotional stress of your separation. Be gentle with yourself while allowing yourself to feel all your emotions. Find safe people to talk to so that you can build a support network around yourself and your children.

For further guidance on how to protect your family through a legal separation, schedule a free consultation. Our family law attorneys are compassionate, knowledgeable, and ready to work with you to provide stability and legal protection for your family.

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