separate and 3 steps to follow

What to do to separate: 3 steps to follow

If you want to know how to separate in the United States, in this article we will explain everything you need to know about the procedures to follow, the differences between separation and divorce, the different types of separation, and more.

Before explaining the steps you must follow to separate, it is important that you know that separation is not the same as divorce.

Marital separation consists of the decision of one or both spouses to end the relationship, but the marital bond continues to exist.

Therefore, if you separate:

  • You will NOT be able to marry a third person if you do not divorce first.
  • In case of reconciliation with your ex-spouse, it will be enough to inform the Judge.

However, divorce consists of the decision of one or both spouses to terminate the marriage bond.

  • After getting divorced you CAN marry a third person.
  • In case of reconciliation with your ex-spouse, during the divorce process, it will be enough to inform the Judge.
  • If reconciliation occurs after the divorce decree, you will have to enter into a new civil marriage with your ex.

For both separation and divorce, the marriage must have been celebrated at least three months in advance. In other words, you cannot separate or divorce if the marriage occurred less than three months ago.

Furthermore, to separate you do not have to allege any cause for separation, the will of one of the spouses is enough to end the relationship (separation) or the marital bond (divorce).

What to do to separate from my husband?

During a marital separation, decide upfront on living arrangements, finances, custody of children, and boundaries for interactions as you navigate this transition period apart before deciding on reconciliation or divorce.

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What steps must be taken to separate?

1.- Attempt a separation by mutual agreement between the spouses

In order to avoid the traumas and problems that come with a contentious separation, we advise you to try to reach an agreement with your spouse.

The separation process by mutual agreement is cheaper, faster, and less traumatic for the family.

But if you do not reach an agreement, you will have to begin a slower, more expensive, and emotionally tense contentious separation process.

2.- Choose the right professionals

If there is an agreement between the spouses, the professionals who intervene in a marital separation by mutual agreement are:

  • In the judicial procedure: a Lawyer and a Solicitor, for both spouses. Unless each spouse prefers to have their own Lawyer and Attorney.
  • In the extrajudicial procedure: A Notary and a Lawyer. Also in this case, the spouses can each be assisted by a Lawyer, although the assistance of one is sufficient.

In the absence of agreement between the spouses, it is necessary to go to Court and initiate a contentious process of marital separation.

In case of contentious separation, each of the spouses must hire their own Lawyer and Attorney and it would not be possible to process the separation before a Notary.

3.- Choose the procedure for marital separation

The procedure will be different depending on whether or not there is an agreement between the spouses.

If there is an agreement between the spouses and you have minor children

In this case, you can initiate a judicial procedure by mutual agreement.

The procedures of this judicial procedure are as follows:

  1. Presentation of demand by mutual agreement. The claim may be filed by both spouses or by one with the consent of the other. The following documents must be attached to the claim:
    • A marriage certificate is issued by the Civil Registry where it is registered.
    • Birth certificate of the children issued by the Civil Registry showing the birth registration.
    • Agreement regulating separation, containing measures on custody and custody of children, visitation regime, alimony and compensatory support, where applicable, use of the habitual residence, liquidation of the matrimonial property regime, if applicable.
    • General power for lawsuits in favor of the Attorney General. The power of attorney may be made before a Notary or by appearing before the Lawyer of the Administration of Justice (Judicial Secretaries).
  2. Ratification of the regulatory agreement. The Court will set a day for both spouses to sign (ratify) the agreement regulating their separation in the Court itself.
  3. Court ruling. Once the regulatory agreement is ratified, the Court will issue a ruling on marital separation.
  4. Registration of the sentence in the Civil Registry. When the sentence is final, that is, when no further appeals can be filed against it, it is registered in the Civil Registry.
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If there is an agreement between the spouses and you do not have minor children

You can choose to process your separation through a public deed of marital separation before a notary.

The procedures are as follows:

  1. Choose a competent Notary. Any Notary of the last common domicile or that of the domicile or habitual residence of either of the spouses will be competent.
  2. Provide the necessary documentation. You must go to the Notary Office with the following documentation:
    • The ID of the spouses.
    • Family book, to prove that there are no minor children.
    • Marriage certificate.
    • Birth certificate of adult children, if any.
    • Regulatory agreement, previously agreed and drafted by a Lawyer.
    • It is not necessary to allege any cause for separation.
  3. Appear before a Notary.   Both spouses must go to the Notary Office in person, representation is not possible. Children of legal age will also appear before a Notary when the measures adopted affect them. The Notary will read the deed, which must state the unequivocal desire of the spouses to separate, and will be signed by the Notary, the spouses, and the adult children, if applicable.
  4. Registration of the separation deed in the Civil Registry.

 If there is NO agreement between the spouses for separation

You will have to initiate a contentious separation procedure.

The procedures for the contentious procedure are as follows:

  1. Presentation of a lawsuit for contentious separation. The claim that initiates the procedure is filed by only one of the spouses, who will be represented by a Solicitor and assisted by a Lawyer.
    • The application must indicate the measures you request regarding care and custody of the children, visitation regime, alimony, and compensatory support, use of the habitual residence…, and other requests that may be of interest.
    • As in separation by mutual agreement, it is not necessary to invoke any cause to separate.
    • Regarding the documents that must be accompanied, they are the same as for the judicial procedure by mutual agreement, except for the regulatory agreement, and when they serve to support your claims.
  2. Answer to the lawsuit for contentious separation. The other spouse has a period of 20 days to respond to the claim. To answer the claim, a Lawyer and Attorney will be required. The response will state whether or not it agrees with what the plaintiff requested and will include the measures requested (care and custody, visitation regime, pensions…).
  3. Summons for holding a hearing or oral trial. The Court will set the day and time for the trial to be held. Each party will provide the relevant evidence to support the requested measures in relation to custody, food, and use of the home… These measures will be reviewed by the Judge and the Prosecutor, if there are minor children.
  4. Court ruling. Once the trial has been held and the evidence has been carried out, the Judge will issue a sentence of marital separation and will agree on the most appropriate measures for the interest of the minor children.
  5. Registration of the sentence in the Civil Registry. When the sentence is final, it must be registered in the Civil Registry.
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1.How do I prepare for separation?

To prepare for separation, gather important documents, make copies of financial records, open separate bank accounts, seek counseling support, notify friends/family, and consult a lawyer to understand your rights.

2.How do you talk about separation?

Have open, honest conversations about reasons for separating, set realistic expectations, agree to boundaries and rules, and discuss practicalities like living situations, custody schedules, and dividing assets.

3.Is it a good idea to get separated?

Separation can provide time and space to work on issues, adjust to life apart, or prepare for divorce proceedings in a less drastic way than immediately divorcing.

4.What to do after separation from husband?

After separation, continue self-care, seek counseling if helpful, cooperate on co-parenting duties, complete agreed-upon financial disclosures, determine if reconciliation is possible or proceed with divorce.

5.What is the process of separating?

The process involves deciding separation terms, moving into separate residences if cohabiting, dividing finances, negotiating child custody schedules, seeking counseling, and determining next steps toward reconciliation or divorce.

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