Separation happens when a married couple decides to live separately, meaning living in different homes. Living apart might be intended to be short-term or long-term.
The couple might be separating because they are planning on divorcing, or it might be because they do not know whether they want to divorce, and they are separating as a way of trying out living apart. In some cases, a couple chooses separation instead of divorce for religious reasons or for financial benefit.
Legal separation means a formal separation that is done through the court system. Together, the parties and the judge arrive at decisions concerning the terms of the separation, including division of property, responsibility for debts, child custody, child visitation, spousal support (alimony), etc. The judge issues an order, making those decisions final and enforceable.
Unlike a divorce, legal separation does not terminate the marriage. The parties are not truly married anymore, but they are also not divorced, which means neither may remarry.
How Does Legal Separation Affect Property Rights?
When the two spouses lived together, all their income and all their debts were, unsurprisingly, joint. Each party was entitled to half of the other’s salary, and the debt had to be paid by either or both of them. Creditors could come after either one, no matter who incurred the debt.
What happens to income and debts when the couple separates? If one spouse goes to stay with a friend for a month after a bad argument and then receives a bonus check from work, is that joint property? (Answer: it depends on what the parties’ intention was: to separate or not.)
Living apart can greatly alter the property rights between spouses. Unlike when they lived together, and everything was owned jointly, all the assets and debts acquired during the separation belong only to the spouse who acquired them – not to both of the parties. For example, neither party has any further right or interest in the other spouse’s income.
Moreover, once the couple is legally separated, they are no longer responsible for any debts that their spouse incurs after the date of separation. There is one important exception to disentangling the parties’ income and debt: if the debt is incurred to provide certain necessities for the children, then during separation, the debt will be considered a joint debt owed by both.
In separating, the couple will divide up their personal property. If they later divorce, the chances are very strong that the court would order the personal property to be divided permanently in just the manner it was allocated during the separation.
Another element of property is spousal support (formerly called alimony). If one spouse is giving money weekly or monthly to the other spouse, chances are that if they divorce, the court would order spousal support in just the same way. This is because the court will assume, reasonably, that the partners knew their financial needs and capabilities when they decided to have one party make regular payments to the other. Unless the financial situation for one or both parents has drastically changed between separating and divorcing, the court will enforce their prior agreement as to alimony in the legal separation order.
To protect separated couples from having a judge who barely knows them make all the key decisions if they do not reconcile, the couple should put together a separation agreement outlining the financial issues that may arise. For example, they may need to determine if they still want to keep a joint bank account or credit cards. Other questions may also arise about the ownership of the house and if the mortgage will be shared.
In addition, if they have any children, they must decide how and when each party will spend time with them.
Why Should I Consider a Legal Separation?
Couples may have multiple reasons to want to separate. Perhaps they are thinking of divorcing, and they want to experience what it would be like to live apart. Or perhaps they know that they want to divorce, but first, they need to meet their state’s divorce law requirement that parties live apart for a stated amount of time before they can petition the court for a divorce.
Once they have decided to split up, there are many reasons to consider obtaining a legal separation rather than a divorce or a casual split.
Legal Separation May Be Better than a Casual Arrangement
- Legal separation is more formal than simple separation and addresses more thoroughly typical issues such as the division of assets, child custody, child support responsibilities, alimony rights, and more. Moreover, in a legal separation, the parties’ agreements on these issues are embodied in a court order and thus are enforceable in court.
- For the children’s sake, it might be better to have the terms of the separation in black and white. Knowing that failing to pay child support or to grant visitation can wind up in a court battle, each party may be more likely to live up to their obligations.
- They do not plan to divorce, but one or both parties want to avoid any personal responsibility for new debt that one spouse may incur, or they do not want to share their income with the other party anymore. In short, they want their finances to become separate. This can happen also in a casual separation, but it will be clearer if written into a court order.
- They prefer to enter into a legal separation arrangement so that they retain the power to decide their various issues instead of leaving them up to a judge who does not know them or their needs nearly as well as they do
Legal Separation May Be Better than Divorce
- Religious beliefs may prohibit the couple from getting a divorce. A legal separation allows couples with strict religious beliefs or unwavering personal values to remain legally married but live apart from each other without violating a code of conduct that frowns on divorce.
- One spouse does not have access to health insurance, and the couple wants both spouses to stay on the health insurance plan of the spouse who does hold insurance.
- They want to claim the tax benefits of filing as a married couple.
- They want to retain the ability to obtain Social Security payments based on their spouse’s work history. Social Security has a 10-year requirement: if a marriage has lasted at least 10 years, a divorced spouse is entitled to Social Security benefits based on their spouse’s work when they reach the age of 62 and they haven’t remarried. Once the couple satisfies the requirement that their marriage lasts at least 10 years, they are free to divorce.
- Separating may be less socially embarrassing than divorcing
- Getting back together after a legal separation is also much easier than if the couple was divorced and had to remarry
Should I Hire A Lawyer?
If you or your spouse is considering a divorce, a legal separation may be a feasible option to look into first to understand the issues that may arise if you get a divorce. Certain benefits come with a legal separation versus a divorce. However, issues with children, division of property, and alimony may differ depending on which state you reside in. Therefore, it is useful to contact your local family attorney to understand the differences and make a plan suitable for your family situation.