Separation

I think my marriage is over. What are my legal options?

Deciding that a marriage is over is difficult for any couple. However, even when you’ve decided to end your marriage, your decision-making responsibilities do not end. You must choose between several different legal options, including separation, annulment, and divorce. Each of these topics is discussed below. Depending on your situation, major differences may exist between the three options, including differences relating to property division, insurance rights, and tax implications. It is likely best for you and your spouse to each consult with an attorney to discuss which option is best.

What is a legal separation?

Legal separation allows a husband and wife to live separately, and to formalize their arrangement by a court order or written agreement. The order or agreement will specify what support, if any, one spouse will pay to the other. If the husband and wife have minor children, the agreement or court order will set forth arrangements regarding custody or visitation. Generally, a separation does not legally end a marriage.

How does the military view a separation?

In the eyes of the military, you are still married. Consequently, any support obligations remain in place and, if you have sexual relations with anyone other than your spouse, you could be charged with adultery under the UCMJ.  During a separation, the nonservicemember spouse generally remains eligible for healthcare benefits, on-base privileges, and the servicemember spouse should continue to receive an increased housing allowance. If you are stationed overseas and the civilian spouse would like to return to the states, he or she will need an "advance return of dependents." In order to get one, you will need a letter from a professional (such as a lawyer, chaplain, or counselor) indicating that you are experiencing marital difficulties.

Do I have to have a separation agreement before I can separate from my spouse?

No. The law does not require a separating couple to enter into a separation agreement, but it is a good idea if there are debts, children, support claims, or property involved and you want to settle these matters in writing.

Does a couple have to be 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.

A separation agreement may make your divorce faster or easier in some states. You should talk to your attorney to determine what makes the most sense for your situation.

Who writes a separation agreement?

It is best to have an attorney write your separation agreement. A legal assistance attorney or civilian lawyer should be able to help you; however, you should note that some branches prohibit their legal assistance attorneys from doing so (sometimes depending on the manning and experience levels available within the specific legal assistance office). Talk to your legal assistance attorney to see if he or she can help you or refer you to someone who can.

It is also a good idea to have two attorneys involved, one to advise each spouse. In this way, the husband and spouse both know that they have received independent legal advice for their individual situation from a lawyer who does not have a conflict of interest in trying to represent two clients with different goals and needs.

For a detailed list of what should be included in your separation agreement, visit the Legal Eagle handouts prepared for the North Carolina State Bar.

My spouse isn’t following the support requirements we agreed to in our separation agreement. What can I do?

If you have a court order in place, you can get a court to hold your spouse in contempt of court for violations. However, separation agreements usually aren’t part of court orders. You may be able to sue your spouse for breach of contract for not living up to the obligations under a separation agreement. You should talk to your attorney as to what your first steps should be.

Can we decide issues regarding custody and child support in a separation agreement?

Yes. However, remember that courts are not necessarily bound by what you say in your agreement. The terms you include for child support, custody, and visitation can always be modified by the court in the best interest of the children.

Can I date while separated?

While separated, you are still considered married and any sexual relations with someone who is not your spouse is adultery if it occurs before you are divorced. Any “dating clause” you include in your separation agreement will not change this.