The decision to end a marriage is not an easy one. Divorce terminates the marriage officially, whereas a legal separation comprises an order from the court dictating the couple's rights and responsibilities while they remain married but live separately. Both agreements establish a financial separation between spouses and offer legal guidance for managing debts, alimony, and child custody as well as support decisions. But a divorce ends a marriage irrevocably.
A divorce could seem to be your only option if you and your partner are experiencing serious issues or if you want to separate and safeguard your finances. On the other hand, a legal separation has the potential to provide the same safety net as a divorce and, in certain instances, can even be preferable. Let's take a closer look at both alternatives so you can make an informed decision about which is best for you.
Understanding Separation Versus Divorce
In many respects, the effects of divorce and those of legal separation can be similar. Divorce and legal separation both establish legally recognized boundaries between spouses. In both arrangements, you live apart. You separate your financial affairs. Court orders are made regarding child custody and support, the splitting of marital property and financial obligations, and spousal maintenance (also known as alimony in the event of divorce).
The key distinction between a legal separation and a divorce lies in the fact a divorce marks the official dissolution of your marriage. It means that your relationship as a married couple has come to an end. You're allowed to marry again.
However, when you're legally separated, your union is still recognized by the law as a marriage. You must keep indicating on documents that you're married. You are not allowed to get married again. You can still get an inheritance from one another.
What is Separation?
Separation signifies time spent apart from your spouse. It occurs when both partners agree to live separately from one another while they try to work out any issues or decide to formally divorce.
Many people live apart, meaning they do not share a common residence. However, separation does not always include moving into separate residences; spouses could continue sharing a home for financial or legal reasons. In this instance, the pair decides to live together as roommates rather than a legally married couple.
Couples can separate formally or informally. Informal separations take place without the involvement of the court; the separated couple chooses to continue living apart while filing for a divorce. A legal/formal separation, is acknowledged by the court and could have an impact on shared assets and tax obligations.
You can't remarry when you're separated since you're still considered legally married. You can't legally remarry until you've gotten a divorce.
Separation Agreements
It is essential to draft separation agreements that outline the separation's basic conditions once you separate. It's like an agreement outlining the conditions of your separation. The exact date of separation should be included in your separation agreement. This is crucial in assessing whether or not assets accumulated during your separation turn into marital property.
The separation contract will also specify who is responsible for covering the bills and what money will be used to do so. Both spouses will determine whether or not to pay bills out of the marital assets. The agreement specifies which credit cards and bank accounts are shared, if any.
The custody part of your separation contract is one of its most crucial components. This part identifies every child that the couple has together and specifies a physical custody arrangement, including how custody is allocated or who the children will be living with. It specifies a child maintenance amount for the separation period and if shared legal custody is maintained.
Separations can be broken down into three categories.
Trial Separation
This kind of separation, often known as "marriage separation," is voluntary and doesn't involve submitting any paperwork to the court. Most couples decide to undertake trial separations in the hopes of resolving their issues and keeping their marriage intact. During trial separations, nothing much changes legally for both parties because all marital possessions laws continue to be in effect.
For instance, any debts or assets obtained by either party throughout the trial separation phase will be regarded as marital possessions.
Working out the details of the separation together is a smart idea regardless of the sort of separation you decide on. This entails drafting a separation contract that tackles issues like:
- How long you will be apart.
- How to deal with bills.
- Where each of you will live, whether any of you will keep using the family's shared credit or bank accounts, and
- Child support, visitation, and custody.
Being separated doesn't require that you sign a separation contract. However, there will be minimal misunderstandings or arguments if you take the time to put everything in writing and have both parties sign it. Additionally, you could utilize this contract as a template to create a marital agreement when you finally decide to get a divorce.
When a couple decides there is no chance of reconciliation, their temporary separation will become a permanent one.
Permanent Separation
During "permanent separations," spouses live separately and there is no chance of getting back together. Permanent separation can occur without going through a legal process.
Permanent separations could impact couples' property rights based on state legislation. For instance, once a marriage permanently splits, some states make each spouse exclusively liable for all obligations incurred after their formal separation. You should pick a definitive date of separation since doing so might influence your legal rights to shared assets.
It's crucial to avoid hanging out or spending nights together to catch up after deciding there's no chance of reconciliation and your separation is irreversible. A temporary reconciliation could affect the division of assets, debts, and property between you two.
Legal Separation
A legal separation is an official separation that the court has approved. Legal separations are not permitted in every state. The procedure is comparable to seeking a divorce in jurisdictions where legal separations are permitted. When one spouse seeks a formal separation, the court will oversee the distribution of assets and debts, make decisions regarding child custody and maintenance, and determine whether or not alimony is warranted.
If both parties can come to an understanding on these matters, they could be able to have that agreement included in the judge's final separation order.
Neither spouse is permitted to remarry if a judge orders an official separation. You must obtain a divorce to formally dissolve your marriage before getting married again. In certain jurisdictions, you can stay legally separated indefinitely, but in others, the judge will set a termination date for the separation. If there is a time limit, you will need to determine whether you want to get back together, stay apart, or file for divorce. One partner could initiate divorce proceedings without requiring the other's consent.
There are several reasons why some married couples prefer to stay legally separated permanently:
- A need to maintain the family unit officially for the benefit of the kids.
- Religious beliefs.
- A simple distaste for divorce, despite wishing to live separately.
- One partner needs to maintain the medical coverage that they could otherwise lose during their divorce.
Check with your insurance provider before making any rash choices if you're considering a legal separation as an alternative to a divorce just to maintain health coverage. Legal separations and divorce are treated similarly by some insurance providers when determining when benefits will end.
Differences Between Divorce and Separation
Divorce and legal separations differ significantly in several ways. The primary distinction is that legal separations do not end a marriage. However, a divorce terminates your marriage in a legal sense. Another distinction is:
- Health care and other benefits—A legal separation could allow you to keep certain perks, such as medical coverage and certain Social Security payouts, that would otherwise be lost if you divorced.
- Marital status—You can maintain your marital status if you separate legally. That implies that you are not free to wed another person. Remarrying is only possible after getting a divorce.
- Decision-making—Separated partners are regarded as next of kin in several states. A separated couple can make decisions regarding their health or finances. Divorced partners can no longer be considered to be next of kin.
- Debts/liabilities—Separated couples are obligated to repay shared debts incurred during their marriage. However, they aren't liable for any new debt that the other partner accrues. When a couple files for divorce, the court will split any joint debt.
- Property rights—Legal separation protects a partner's property rights after the other partner passes away. However, these rights are forfeited during a divorce.
- Remarriage/reconciliation—Legal separation makes reconciliation more straightforward. Since divorce is a final and irrevocable step, you should remarry if you need legal reunification.
Similarities Between Legal Separation and Divorce
The court makes the following decisions in legal separation and divorce proceedings:
- Separation upkeep.
- Child custody.
- Parenting planning, parenting timetables, and timesharing with children.
- Division of property.
Separation upkeep or maintenance can include provisions like child support and is thus similar to support for spouses. The distinction results from the effects of divorce, and it typically happens by filing a "motion pending litigation."
The couple's circumstances as they relate to the property are taken into account when dividing property during divorce and legal separation.
Separation Required Before Divorce
In certain states, married partners have to stay apart for a predetermined period before they can get a divorce. Only certain kinds of divorces should meet the separation requirement in the majority of states. For instance, many jurisdictions only demand separation from one another in cases of fault-based divorce. The majority of states that exclusively accept no-fault divorces do not mandate a separation period.
The Benefits and Drawbacks of Legal Separation Before a Divorce
Separation can still be appropriate even when you're sure that the marriage is finished and you want to file for divorce. When you split before divorcing, you and your partner have the opportunity to work out some problems, and any arrangement you make can be used to streamline the divorce. If you and your spouse can reach an agreement on all of the divorce's issues, you could be able to pursue an uncontested divorce. This can save you time, effort, and money.
Filing for divorce without any arrangements in place can result in the process taking longer than expected. Resolving issues like support, custody, and division of property, even on an interim basis, could take months.
It can take up to twelve months or more for some contentious divorces to go to trial. Additionally, if you have retained a lawyer, your legal costs will increase depending on how long the divorce case takes. Furthermore, all parties involved in protracted contested divorces, like children, usually suffer greatly on an emotional level.
Even if you decide to pursue divorce straight away, you can still work things out before the divorce trial. Divorce mediation can be a smart move if you believe you and your spouse are capable of negotiating an agreement. Many couples find divorce mediation to be effective, and it enables them to settle their divorce case on their conditions. Several states demand that couples engage in mediation sessions before a court schedules a date for the trial.
How Separation Affects Property Division
A couple's decision to stay apart can have an impact on divorce settlements. This effect is important in cases that require couples to live apart before filing for no-fault divorce.
States differ in their classification of how debt and property are acquired while staying apart. Some jurisdictions classify property based on whether one of the partners wants to divorce the other. Therefore, if a couple decides to get a divorce, any assets acquired during their separation would be considered non-marital property.
Financial Accountability During Separation
Most of the time, after a separation, both partners are still accountable for any additional debt they incur separately. However, you both bear responsibility for any debt or other unpaid financial debt that you incurred as a couple. To ensure clarity, a legal separation settlement can state which partner is accountable for each debt.
Why Would You Opt For Legal Separation Over Divorce?
Couples can consider separation for financial and personal reasons. Legal separation is reversible while divorce is not. Keeping the family united is important to consider if you have any child involved.
Legal separation allows you time to think things through while still preserving your financial security if you are not entirely sure that you want to leave your marriage. Partners who are unable to divorce due to religious grounds can opt for legal separation.
A legal separation can allow one partner to continue receiving health insurance through the other spouse's employment, as opposed to a divorce, which would revoke this coverage.
Additionally, legal separation makes it possible for you and your partner to keep filing for taxes jointly, which could result in tax benefits. Finally, to be eligible for military and Social Security benefits from your partner's employment, you should have been married for not less than ten years. Until you get to this point, you might be allowed to maintain your marital status through a legal separation.
Reasons for Choosing Divorce
In some cases, a divorce could be preferable.
- It could be preferable to file for divorce right away if you don't think a legal separation will help your finances and are convinced you want to dissolve your marriage. Otherwise, you'll waste money and time obtaining a legal separation only for you to repeat the process to obtain a divorce.
- Since you cannot legally remarry while a previous marriage is still in effect, getting divorced is also necessary if you'd like to get married again.
- Divorce could be the better option if you don't want to be connected to your partner in any way, such as being able to make choices for one another's health or finances. This is because you're no longer the next of kin.
Frequently Asked Questions
Below are some commonly asked questions on divorce versus legal separation:
Can a Legal Separation Last Forever?
The majority of states allow for permanent legal separation between a couple if both parties consent to it. However, in certain states, a legal separation could have a definitive termination date set by the court. By this day, both spouses must have mutually decided to either reconcile, petition the court to prolong their separation, or seek divorce.
Nevertheless, since an official separation does not end the marriage, neither party is permitted to remarry until an ultimate divorce is granted. If either spouse seeks divorce, the separation will be terminated.
Do I Still Have To Pay Child Support Or Alimony When I'm Separated?
In some cases. The court may decide not to grant child support or alimony if you continue to reside in your current home during a permanent or trial separation. However, the judge will determine alimony and child support, when you apply for a formal separation. If you don't abide by the provisions of a maintenance order that the court has ordered as an element of the formal separation, you might face repercussions from the court.
Find a Divorce Attorney Near Me
If you and your partner are unclear about which of the two options—a divorce or a legal separation—would be best for you and your family, you can contact the San Diego Divorce Attorney. Having legal counsel can help you and your partner reach a mutually beneficial divorce or separation agreement that will streamline the process for everyone involved. Although every couple's circumstances are unique, our lawyers will assist you choose the path that is best for you. Call us today at 858-529-5150.
