How to File a Legal Separation Agreement
In numerous states, including Massachusetts and Florida, there is no marital condition called "legal separation." All states recognize marital separation agreements that do not have to be filed with a court to be legally binding. Such agreements, when signed by both spouses and notarized, are enforceable contracts that divide assets and debts, address custody and support obligations and may resolve other issues in a marriage. These contracts can be incorporated, a quasi filing, into a divorce decree at the request of the spouses. If the contract is not incorporated into the decree, it may be enforced by civil suit. If the contract is incorporated into the decree, it is enforceable as a court order.
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Things You'll Need
- Marital separation agreement
- Petition for divorce
- Filing fees
- Summons
- Service fees
- Motion to incorporate separation agreement in divorce decree (in some jurisdictions)
- Divorce decree
Instructions
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Write or have written, either on your own or with the assistance of an attorney, a marital separation agreement. Both spouses should sign the agreement in front of a notary public and keep copies.
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Separate into two households with separate bank accounts --- with each person paying his own household expenses. Divide custody and support of your minor children in accordance with the separation agreement.
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File a petition for marital dissolution or divorce with the clerk of the court in your county. The number and titles of the forms you must complete and file vary greatly from state to state. Filing fees will differ. At the least, you must file the petition and a "summons," which notifies your estranged spouse that you are filing for divorce.
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Prove you have notified your spouse of the pending divorce. You usually hire a process server to hand a copy of the divorce petition to your spouse. Service fees will vary. Some states allow the responding party to complete and notarize a form that acknowledges service of the divorce petition. Some states insist on "service of process."
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Move or stipulate that the marital separation agreement be incorporated into the divorce decree. In Delaware, for example, this request is made at the time the divorce petition is filed when the petitioner completes a 76-page "Divorce/Annulment Instruction Packet." In other states, this is made as a written motion or an oral motion at the divorce hearing.
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Tips & Warnings
Court clerks may not advise you about the law, but they can advise you about procedure and the forms you need to file.
References
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