Do I need to be legally separated before moving out with the kids?
The short answer to this question is no, but there are several reasons why you may want to file for a legal separation in states where they are allowed. These issues are usually based on the legal rights of both the parents and the children. A marriage license is actually a document that connects the spouses legally in terms of living together and having legitimate children, and in many ways, the state views the marriage as a business entity. Both partners have legal rights to accumulated property from the divorce that are addressed during a property dissolution proceeding, but the disposition of minor dependent children is a different issue. The children have rights as well and rarely have a personal attorney. This is why it is very important to have a plan in place before beginning a divorce, including the time you choose to leave the household, because the court has the authority to intervene if they think the children are in any danger.
One of the biggest problems with a separation is that parents still have access rights to their children. Unless there is verifiable evidence of domestic abuse towards the children, either parent can attempt to assume controlling custody of the children when a married couple with children live in two locations. And, the rights of each parent are not necessarily connected to their potential support responsibility. The parent who has designated custody of the children can petition the other parent for some level of child support. When there is no legal separation on file, or even a valid signed agreement between the parents, this can become a very grey area of the law. A legal separation is actually just a recognized legal document that begins the establishment of rights to custody and support of the children.
Children also have rights concerning access to both of their parents. There are no distinct legal lines drawn when there is no separation agreement or legal separation recognized by the state. This means that children may not be allowed to visit their non-custodial parent when the case is emotionally charged for some reason. Material facts in any looming divorce case can also have a major impact on the final dissolution of marriage, including the disposition of children, and many times the parents do not consider the rights of their children. The real fear in this situation for either parent is that one parent will leave the state with the children before any legal paperwork is filed concerning family separation. Small children can easily be taken across state lines without any concern for their wishes when a parent is attempting to make a divorce difficult.
Child and Spousal Support
Claims to child support and potential alimony payments do not begin until one spouse takes the case to court in some fashion. In some states, the only legal move available is filing for divorce immediately. What a legal separation accomplishes in states that allow the legal designation is set a specific date on when financial benefits begin regarding the other spouse. In addition, most states now will eventually require the parents to agree to a “parenting plan” with respect to the rearing of the children instead of issuing a strict ruling on visitation with either parent. A legal separation is also a good initial step when the divorce is being contested or there is any history of violence before or during the time of separation.