Separation and Separate Maintenance

Separation, as the term implies, means the wife and husband are living apart. The wife and husband generally are not required to separate in order to obtain a divorce, although for psychological reasons, it usually works out that way. In some states, certain grounds for divorce may require that the parties live apart for a specified period of time, but in most states there are grounds for divorce that do not require a period of separation.

A legal separation also means the husband and wife are living apart, but a legal separation has the added element that the arrangement is ordered by the court or agreed to by the parties in a written document. The fact that the separation is part of a court order or written agreement makes it a “legal separation”

Payments of support during a period of separation sometimes are called temporary maintenance or alimony pendente lite. (“Pendente lite” is a Latin phrase which means “while the action is pending.”) If the person obliged to make such payments fails to do so, a court could order the payments and take steps to enforce payments, such as garnishing wages or bank accounts or holding a person in contempt of court.

Written agreements regarding support are necessary if the person making the payments wishes to claim a tax deduction for paying support to the spouse. If the person paying support obtains a deduction for the amount paid, then the same amount will be treated as taxable income to the recipient. Without a written agreement or court order, the payments of support will not be deductible to the payer, nor would they be treated as income to the recipient. (For more discussion of the tax aspects of one spouse making support payments to the other, see chapter 11).

If the husband and wife have children, the separation agreement or court order can specify arrangements regarding custody, visitation, or parenting time with the children, and those arrangements also can be enforced by the court. A separation agreement also can provide for who will occupy the family home while the divorce is pending and the degree to which the parties can liquidate or transfer assets, such as funds in an investment account.

An informal or legal separation does not mean the husband and wife must divorce. They are free to reconcile at any time and resume living together. For some couples, a separation serves as a cooling off period—a method of relieving immediate pressure while they sort out what they want to do with their lives.

If husband and wife decide to live together again and there is a court action pending, the action should be dismissed (at least after the couple is reasonably sure they will stay together). “Dismissed” means the case is taken off the list of active cases before the court. If the couple does not dismiss their pending case, the court usually will dismiss the case automatically if nothing has been done on the case after a certain period of time (such as six months to one year). If the husband or wife later decides to divorce, the case can be refiled.