Legal separation is when you stop living with your spouse and you have a legal separation agreement, or contract, that you both follow. If a spouse does not follow the agreement, family court can enforce it. 

Unlike a divorce, legal separation does not end your marriage.

Couples decide to legally separate instead of divorce for many reasons. Some of the most common reasons are:

  • They are unsure if they want to get divorced
  • They cannot afford to get divorced
  • Financial benefit, such as continued health insurance

It is important to note that legal separation is not just moving out of the home you share with your spouse. If you want to legally separate, you need a separation agreement.

A separation agreement is a written contract between you and your spouse that outlines the rights and responsibilities of each spouse while living apart. 

Generally, rights and responsibilities in a separation agreement include division of property and debt, how much child support you will pay or receive, child custody (if you have children) and visitation.

A couple things to note:

  • Having a separation agreement is what makes you legally separated. You are not legally separated unless you have it (or you go to court for a Judgement of Separation which is more rare).
  • You and your spouse must voluntarily agree to all the terms of your separation agreement. The court will not force a separation agreement upon you. In fact, you or your spouse could challenge the separation agreement in court (or argue that the agreement is not legal) if there is proof that you or your spouse did not voluntarily agree to all the terms of your separation agreement.

No. A court will not draft—or give you—a separation agreement. You and your spouse, or your lawyers, are responsible for drafting the agreement.  

You and your spouse must both sign the agreement voluntarily—you or your spouse cannot be forced to sign the agreement and you must know and understand what it says. 

Once your agreement has been signed and notarized, you may file it with the County Clerk in the county where either you or your spouse currently live.  You do not have to file the agreement with the County Clerk in order for the separation agreement to be legal.

You can write your own separation agreement, but it is tricky. Legal separation agreements are long and complex. 

We strongly recommend you ask an attorney who has expertise in this area to help you. If possible, both you and your spouse should each get an attorney.

In general, a separation agreement covers:

  • Basic information such as the date you were married, the date you separated (or will separate)
  • Who the children will live with (if you have children)
  • Who will pay which bills
  • How property, like your home and cars, will be divided up and cared for

It is important to think carefully about the terms of your separation agreement. If you decide later to get divorced, the terms of your separation agreement can become the terms of your divorce. 

To help you prepare to speak with a lawyer about a separation agreement, the following is a list of issues a lawyer will likely ask you about. Consider each issue carefully:

Where you will live

Legally separated spouses must live separately at all times.

Spousal support

The agreement must specify the amount of money (if any) you or your spouse will pay to the other and for how long.


You and your spouse will need to decide if one of you will have sole custody of your dependent children, or if you will share custody (known as joint custody).

Visitation schedules

Whether you have sole or joint custody, your separation agreement should include:

  • A regular visitation schedule (times during the week that each parent is allowed visits with the child)
  • A holiday visitation schedule
  • A vacation visitation schedule

Child support

Typically, the parent who has the child for the least amount of time pays child support to the other parent. You will need to decide how much, and how often, the paying parent pays.

Any additional costs for children

Additional costs can include costs for extracurricular activities (like piano lessons or sports league fees), additional health insurance, etc. Total up these costs and decide what percent of the total cost each parent will pay.

Your home

You will need to decide what will happen to your home. For example, you may want to agree that you or your spouse will not sell the home without the other’s permission.

Other property

If you want to make sure you are entitled to a specific piece of property, like your motorcycle or car, write it in your separation agreement.

Pensions and retirement

How your pension and other retirement accounts, like a 401(k), will be divided up.

Who will pay which bills

You will need to decide who will be responsible for which bills, like your mortgage, any credit cards, car payments, insurance payments, personal loans and any other debts.

  1. Get it signed and notarized. You and your spouse can sign it at different times and in front of different notaries.  The separation agreement is legally valid once it is signed and notarized.
  2. If you want your separation agreement to be used for a divorce, or otherwise have the family court enforce your separation agreement against your spouse in court, you must file your signed and notarized separation agreement with the County Clerk in the county where either you or your spouse currently live. 

If you want the terms of your divorce to be the same as the terms in your separation agreement, file for a conversion divorce.

What is a conversion divorce?

A conversion divorce is a divorce based on an existing separation agreement.  

How is a conversion divorce different from a regular divorce?

In a conversion divorce, you ask the judge to include all the terms of the separation agreement in your divorce. The judge will review all of the terms of your agreement and decide whether to include all the terms of the agreement in your divorce.

Also remember: You and your spouse must have lived apart for at least one year, and followed the terms of your separation agreement, before filing a conversion divorce.

If you have not already filed your separation agreement with the county clerk, you must file the separation agreement at the same time you file your divorce papers.

Do I need a lawyer for a conversion divorce?

It is always best to have a lawyer when getting a divorce. If you hired a lawyer to write your separation agreement, that lawyer can usually help you file a conversion divorce.

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Last Reviewed: April 4, 2024