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 agreement. The fact that the separation is part of a court order or written agreement makes it a "legal separation"
The main reason for obtaining a legal separation instead of an informal separation is to make more certain the rights and responsibilities of the parties during the period of separation. If one party–usually the wife–will be receiving financial support during the period of separation, the court order or written agreement will make support an enforceable right.
Payments of support during a period of separation sometimes are called temporary maintenance or alimony pendente lite. If the person obliged to make such payments fails to do so, a court could order the payments and take steps to enforce payments.
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.
If the husband and wife have children, the separation agreement or court order can specify arrangements regarding custody or visitation with the children, and those arrangements also can be enforced by the court.
A separation (or legal separation) is not the same as a divorce. Persons who are separated may not remarry. They must wait until a divorce is final before being able to remarry. The terms of a separation agreement usually can be modified by the court or by the parties themselves during the period of separation.
Courts, or the husband and wife by agreement, also can modify the provisions of support, custody and visitation when the divorce is finalized.
If the final terms of a divorce are likely to be contested, the parties should be cautious about what they accept as a voluntary, temporary arrangement during separation. Although courts usually have the power to depart from the terms of a separation agreement when entering a final order of divorce, judges may look at the status quo and think, "If this arrangement was workable during separation, it should work after divorce too." If someone is agreeing to terms during a period of separation that they would not want to live with after the divorce, they should make abundantly clear in the separation agreement that they are not binding themselves to the same conditions after the divorce is final.
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.