There are several differences between legal separation and divorce. Basic differences include the duration, process, requirements, and permanency. Legal separation is when you stop residing with your spouse but follow certain living arrangements per a voluntary, written agreement. If a spouse violates the agreement, the family court can enforce it.
Unlike a divorce, a legal separation does not end your marriage. Divorce is permanent, and you can remarry once finalized.
Moreover, couples decide to separate instead of divorce for many reasons legally. Some of the common reasons include the following:
- They are not certain if they want to obtain a divorce;
- They cannot afford divorce; and
- Financial benefits, such as continued health insurance.
It is crucial to note that legal separation is not merely moving out of the home you share with your spouse. If you want to separate legally, you must draft a separation agreement. You can be legally separated for as long as you and your spouse consider best in your situation.
However, if you plan to submit a separation agreement as the basis for a divorce later, you and your spouse must have been living apart, under your separation agreement, for at least one year.
What is a Separation Agreement?
A quick overview of a separation agreement can help you understand it better. A separation agreement is a written contract between you and your spouse that outlines the rights and responsibilities of each spouse while living apart. Typically, rights and responsibilities in a separation agreement include division of property and debt, how much child support you will pay or receive, child custody (if you have children), and visitation.
Keep in mind that having a separation agreement is what labels you as legally separated. You are not legally separated unless you have it. You and your spouse must voluntarily concur to all the terms of your separation agreement. The court will not force a separation agreement upon you.
Furthermore, a court will not draft or provide you with a separation agreement. You and your spouse, or your lawyers, are responsible for drafting the agreement. You and your spouse must both sign the agreement voluntarily. Once signed, it must be notarized and filed with the county clerk.
Moreover, it is important to think carefully about the terms of your separation agreement because failure to follow it can result in negative consequences. Therefore, seeking out a legal a professional to assist you with this can be useful for your case.
Is Legal Separation Right For Me?
Many couples choose legal separation, and it can depend on their situation. Some reasons were mentioned earlier, but sometimes it can be due to time or money. Furthermore, legal separation has pros and cons, and it may not be right for every couple.
Here are some of the most significant things to consider:
- Legal separation provides space and time to figure out if divorce is what you want;
- It can be an opportunity for marriage counseling;
- You can still receive your spouse’s health insurance;
- Years spent legally separated count as years married so that you can receive your spouse’s social security retirement benefits. (You must have been married for at least 10 years to receive your spouse’s social security benefits.);
- Legal separation may not violate your religious beliefs; and
- A separation agreement can be helpful if you divorce because the court may allow you to use your agreement as a basis for divorce.
Some of the cons for obtaining a legal separation may include the following:
- Legal separation does not terminate your marriage. You would still have financial, legal, and logistical ties to your spouse;
- A separation agreement is insignificant unless both spouses sign it;
- Spouses who cannot come to terms will have a challenge forming a separation agreement;
- You cannot marry someone else while you are legally separated.
- If abuse has happened in your marriage, legal separation is not a good option; and
- You must wait a year to use a separation agreement as a basis for divorce.
Remember that the above are facts before deciding on either option in your relationship. Before deciding on this life-changing relationship, seek legal advice on how that decision will impact your current situation. Also, what must you do to protect your assets and other valuables?
What Does a Divorce Do?
The American Bar Association defines what a divorce is. A divorce or dissolution of marriage is essentially a decree ordered by a court that terminates a legally valid marriage. It allows both parties to remarry. The court may divide property, order spousal support, and award custody and child support if children are involved.
It is crucial to note that not all states handle divorce the same way; some states permit a divorce order to be entered and then have you collaborate on the other issues (property and custody) later, and others require that everything be resolved before a divorce can be granted.
For instance, marriage is considered over if your situation calls for a no-fault divorce. A no-fault divorce is one in which neither person blames the other for the marriage breakdown. There are no accusations and no need to prove guilt or cause. Common bases for no-fault divorces include irreconcilable differences and irretrievable marriage breakdowns.
As those terms imply, the marriage is considered over, but the court and the relevant legal documents do not assign blame. Another common basis for no-fault divorce is the parties living separately for a certain period, such as for six months or a year, with the intent that the separation is permanent.
Additionally, no-fault divorce is considered a relatively nonabrasive and practical way to terminate a marriage. The laws of no-fault divorce recognize that human relationships are challenging and that it is hard to trace the breakdown of marriage solely to the actions of one person.
Therefore, all states offer some form of no-fault divorce, but many also retain fault-based grounds as an alternative way of obtaining a divorce. In some situations, spouses may want the emotional release of proving fault on the part of their mates. However, courts are not good forums for dealing with personal issues, and the accuser ends up less satisfied than expected.
Moreover, the grounds for fault-based divorce can differ somewhat from state to state. Many states allow divorce in cases involving adultery, physical cruelty, mental cruelty, attempted murder, abandonment, habitual drunkenness, use of addictive drugs, insanity, impotence, or infection of one’s spouse with venereal disease.
Although fault-based grounds may exist for a divorce in your case, you still might want to choose a “no-fault” divorce to avoid the expense, stress, and potential embarrassment involved in “proving” the fault allegations to a court.
To answer if divorce is right for me is a complex question. Therefore, the best option is to understand what a divorce does in terms of your rights and obligations. Divorce is permanent, and anyone unsure about this decision may need to seek other options before the divorce.
When Do I Need to Contact a Lawyer?
If you cannot decide between legal separation or divorce, do not hesitate to seek a local divorce attorney to help you understand their nuisances and how they will impact your situation. Your attorney can provide the legal representation and guidance needed for your case.
