Separate Maintenance (Separation)
Sometimes couples want to separate but do not want to divorce. A "separate maintenance" case addresses all the same issues involved in a divorce, except the parties do not actually get divorced. At the end of the case, the parties will have final custody orders, support orders, and property and debts will be divided. However, the parties will still be legally married.
Common reasons that people may seek separate maintenance instead of a divorce are:
- Religious reasons
- Not ready to go through a divorce
- To keep medical benefits
A separation does not stop either spouse from asking for a divorce in the future. However, a new divorce case may need to be filed.
The court process and issues involved in a separate maintenance case are generally very similar to divorces. The separation section of this website covers only the basic information and forms needed for separation cases. For a more detailed overview of things you might need to know for your separation case (like going to court, preparing for trial, filing motions, etc.), please visit the Divorce section of this website. Many of the links on this page will take you to that section. The information there applies to separate maintenance cases as well.
You can attend a class for FREE where you can learn the basics of family law matters. Although there is no separate maintenance class, the divorce class covers the same general issues. Classes are available to anyone, regardless of income, and regardless of whether you have an attorney. Classes are offered in English and Spanish. Visit Free Classes for more information.
Information for the Plaintiff (the spouse filing the initial papers)
Information for the Defendant (the spouse who has been served with legal papers)
The Court Process
The Final Decree
After the Separation
Fill out the Papers
If you have decided to file for separation, there are several forms you must complete and file with the court. The forms required to open a separation case are:
- Family Court Cover Sheet
- Joint Preliminary Injunction
- Complaint for Separate Maintenance
The first three forms can be found on the Filing for Divorce page. The Complaint for Separate Maintenance is available below:
File the Papers
After completing the papers above, you will have to "file" the papers with the family court. This officially opens up your case with the court. You can file them in person, by mail, or online. The information on how to file the papers can be found by clicking here. There is a $259 filing fee to file these papers.
Serve the Papers
Once you have filed the papers, your next step is to have your spouse personally served with a copy of all of the documents you filed. It is up to you to make sure your spouse is served; the court does not serve the papers for you. Learn all about how to have your spouse served by visiting the How to Serve the Complaint page.
If you have been served with a complaint for separate maintenance, there are things you must do to participate in the case. If you do nothing, your spouse may be able to get a final decree without you. You only have 20 days after being served to file your own response. Follow all of the steps below, and please also visit the Responding to the Complaint page for detailed information about what is involved in responding to the complaint.
Fill out the Papers
To respond to the complaint, you must complete an Answer (if you just want to let the judge know what requests in the complaint you agree and disagree with) or an Answer and Counterclaim (if you want to ask the court for specific orders like the Plaintiff did in the complaint). The Answer & Counterclaim allows you to ask the court for a divorce instead of a separation if you want to proceed with a divorce instead. The forms are below:
You will need to file a Financial Disclosure Form either with your initial papers or within 30 days of when you file your reponse. You may also want to complete a Joint Preliminary Injunction if your spouse did not file one.
File the Papers
After completing the papers above, you will have to "file" the papers with the family court. You can file them in person, by mail, or online. The information on how to file the papers can be found by clicking here. There is a $217 filing fee to file these papers.
Serve the Papers
Once you have filed the papers, your next step is to serve your spouse with a copy of all of the documents you filed. It is up to you to make sure your spouse is served; the court does not serve the papers for you. Learn all about how to have your spouse served by visiting the How to Serve the Answer & Counterclaim page.
There are many things that may happen after the initial papers are filed. A brief description of some events is below, with links included to detailed discussions of each subject.
- Default. If the Defendant did not file a response within 20 days of being served with the complaint and summons, the Plaintiff can ask the court to enter a "default" against the Defendant. If entered, a default stops the Defendant from being able to respond to the case and allows the Plaintiff to ask for a final decree. Please visit the Default section and then the Final Decree section for information about this.
- Case Management Conference. If the Defendant filed a response, the judge is required to set an initial hearing within 90 days of the date the answer was filed. This is an initial hearing where the judge can find out some basic information about the parties and the issues involved in the case. Please visit Case Management Conference for more information about this hearing and how to prepare.
- Motions for Temporary Orders. If the parties need the judge to issue some temporary orders while the separation case is moving forward, either spouse can file a "motion" asking the judge for some temporary orders. Temporary orders can include temporary custody orders, temporary visitation schedules, temporary child support or alimony, etc. Please visit Motions and Oppositions for Temporary Orders for more information.
- Family Mediation Center. When parents cannot agree on custody or visitation schedules for their children, the court requires them to attempt mediation. You can learn more about this process by visiting the Family Mediation Center page.
- Trial. When the parties cannot agree to all the final terms of their separation, the judge will have to set a trial and decide the issues. You can learn about trial preparation and the trial process itself by visiting the Trial page.
Once all of the issues involved in the separate maintenance case have been decided (either because the parties reached an agreement, the judge decided everything at trial, or a default was taken against the Defendant), the final step in the case is getting a Decree of Separate Maintenance approved by the judge. There are many steps involved in getting a final decree. All of the steps can be found by visiting the Final Decree page.
Most of the forms on that page can be used to get a final Decree of Separate Maintenance. The only forms you will need to replace are:
The Affidavit in Support of Summary Disposition
The Decree of Separate Maintenance
Follow all of the steps on the Final Decree page to get your final Decree of Separate Maintenance approved by the judge.
Parties sometimes have issues that they need help with after the separation is finalized. This can include problems with the child custody order, the visitation schedule, the child support order, the alimony order, etc. A person may need help enforcing the existing order (because the other person will not follow the court order), or a person may want to change the order completely.
There are many options available to get the court's help if problems arise later. These options are all explained in detail on the Changing the Order page and the Enforcing the Order page. All of the options in those sections are available to people who have a Separate Maintenance decree.