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What is Separate Maintenance?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 27 November 2016
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Separate maintenance is maintenance provided by one spouse to another when the spouses are legally separated. They are still married, but they are not living together. Separate maintenance includes child support payments and funds which are designed to help the other spouse maintain his or her lifestyle. A separate maintenance agreement usually also discusses the division of property, child custody arrangements, and other details of the separation.

Couples may obtain a legal separation for a number of reasons. Sometimes it is designed as a cooling off period to determine if the partners would like a divorce. In other cases, people are opposed to a divorce, but wish to live separately. A legal separation may sometimes be referred to as a divorce from bed and board, in contrast with a dissolution of the bonds of matrimony.

When a couple legally separates or obtains a divorce from bed and board, the court becomes involved in the process. The partners, with the assistance of the court, work out a separation agreement which is deemed acceptable. It is generally understood that both spouses have a right to live in the style to which they were accustomed under the marriage, which means that property must be divided equitably and one spouse may be obliged to pay separate maintenance to support the other.

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Some couples make agreements before they marry about what should happen in the event of a separation. In these cases, the prenuptial agreement may determine some of the terms of the separate maintenance. For example, one spouse may indicate in the agreement that she or he will retain ownership of the house in the event of a divorce and that if the house is sold this spouse will keep the proceeds. Other items of property may also be separate, in accordance with the terms of the agreement made before marriage.

When a couple formally divorces, then separate maintenance becomes alimony. If a couple was previously legally separated, the separate maintenance agreement may be used as a guide for developing an agreement on alimony payments and other terms related to the divorce.

Some couples are able to work out the terms of a separate maintenance agreement amicably, with the assistance of lawyers to draft the legal documents, in which case the lawyers simply need to file the agreement in court in order for it to take effect. In other cases, it will be necessary to go to court in order to receive a court order for separate maintenance.

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