How to File for Legal Separation in 7 Steps

If you've decided this is the right path forward, we'll help you make sense of the process.

Cathy Meyer is a certified divorce coach, marriage educator, freelance writer, and founding editor of DivorcedMoms.com. As a divorce mediator, she provides clients with strategies and resources that enable them to power through a time of adversity.

Cherisse Harris is a fact-checker with a focus on lifestyle, beauty, and parenting. She's worked in research for nearly two decades.

While no one wants to think about it, it's a simple fact that not all marriages work out. If you and your spouse have decided that your relationship is irreparable, you have a few options for going your separate ways. Filing for divorce tends to be most common, but some couples choose to take the route of legal separation instead—this is a binding, legal contract that is just as important as a divorce, but the only difference is that, on paper, your marriage (and the legal rights that come along with it) remain intact. In other words, like a divorce, there will be a division of living arrangements, finances, and child custody; unlike a divorce, however, the marriage hasn't been legally dissolved.

It's important to note that when filing for legal separation, anything you agree to can set precedent should you ultimately decide to divorce later. For example, if you agree to let your partner live in the marital home and you continue to make mortgage payments, a judge may order you to continue doing so after a divorce. Seeking legal consult before signing anything is key.

If you've decided that legal separation is the path forward for you and your partner, you'll want to make sure you're following all the necessary steps to ensure it is, in fact, legal. Here, we outline the seven steps to filing for legal separation, but because laws vary from state to state, use this as a guide to getting started. Once you've familiarized yourself with the process and steps, be sure to check with an attorney to make sure you are doing everything necessary to protect yourself from a legal perspective.

Step 1: Confirm Your State's Residency Requirements

First, you must meet your state’s residency requirements. Residency requirements are the same for legal separation and divorce. To learn about your state’s residency requirements, check your state’s divorce laws. For example, in California, a married couple can file for legal separation if at least one of you lives in the state. Similarly, in the case of domestic partnerships, as long as the domestic partnership was registered in California, both parties may file for legal separation even if you don't live in the state. If your domestic partnership isn't registered in California, one of you must live in the state in order to file for legal separation.

Step 2: Move to File for Separation Petition

If residency requirements are met you will then file a legal separation petition with the court. You may do this by contacting an attorney, using online resources (such as your state government's website), or contacting your court clerk and filing on your own, otherwise known as pro se. Note that a fee is required to file your legal separation forms.

If you meet the state's residency requirements, file for separation in the county where you live.

Step 3: Move to File Legal Separation Agreement

Along with your petition for a legal separation, you will file your legal separation agreement. Make sure the agreement covers all issues such as child custody, child support, visitation, spousal support, how marital assets (like a home or any vehicles you purchased together) might be distributed, who lives where, who pays what debts, any rules and guidelines pertaining to dating other people; which may be considered adultery in some states.

Step 4: Serve Your Spouse the Separation Agreement

If you and your spouse are not filing for separation jointly, you will need to have your spouse served once you have filed your petition for legal separation. As with a divorce, your spouse will have a certain period of time (typically 30 days) in which to respond to your petition for a legal separation.

Step 5: Settle Unresolved Issues

If your spouse does not agree to the provision set forth in the petition, they have a right to file a counter-petition. If this is done and you can’t come to an agreement via mediation or with collaborative law, you will have to go before a judge to settle the issues you were unable to agree upon. In some cases, a legal separation can be as complicated as obtaining a divorce.

Step 6: Sign and Notarize the Agreement

If your spouse agrees to the provisions in the petition, all you will need is for both spouses to sign and notarize the agreement so the court clerk can enter it into the court records for approval by a judge. Do note, however, that anything you do before the court signs off on the separation agreement may affect certain outcomes, particularly as it applies to personal belongings or custody, says David Reischer, Esq., Family Law Attorney & CEO of LegalAdvice.com. For example, "A judge may view a person that moves out of their home as having given up. The court could interpret the person that moved out of the home as abandoning the relationship and forfeiting rights to claim ownership or custody at a future date," says Reischer.

Step 7: Organize Your Records and Execute the Agreement

Once a judge has reviewed and signed your legal separation agreement, it will be filed and on record with the court clerk. After it is on record with the court you will want to be sure to keep a copy for your own records and follow the guidelines set out in the separation agreement.