What Is A Legal Separation?

In a legal separation, the marriage is not terminated. The court has the power to declare the parties to be legally separate.

The law provides for certain legal separation grounds which a party must have before filing for a legal separation. These grounds are much the same as those necessary for a divorce.

In a legal separation action, the court will still divide the property and debt of the husband and wife as it would in a divorce.

The parties are still married and each of them can still be considered the spouse of the other for insurance purposes.

If you have been served with legal separation papers, you are still entitled to file a counterclaim for divorce. Even if the court has granted a legal separation, you are still allowed to file for a divorce or dissolution as well.

The court must issue an order that the parties are legally separated before the parties are considered to actually have a “legal separation.” Writing and signing a separation agreement does not make the parties legally separated.

Grounds for the obtaining of a legal separation in court are:

  • Either party had a husband or wife living at the time of the current marriage from which legal separation is sought

  • Willful absence of the husband or wife for one year


  • Extreme cruelty

  • Fraudulent contract

  • Any gross neglect of duty

  • Habitual drunkenness

  • Imprisonment of the husband or wife in a state or federal correctional institution at the time of filing the complaint

  • On the application of either party, when husband and wife have lived separate and apart without cohabitation without interruption for one year

    Incompatibility, unless denied by either party

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