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Separation vs. Divorce

Legally separation and divorce mean two different things. Couples who "separate" remain married pending any further action, while those who "divorce" are officially no longer married. How the couple's assets and debts are divided during a period of separation varies by state and the type of separation that occurs.

Types of Marital Separations

There are four types of marital separations a couple can obtain:

  • Trial separation: When a couple lives apart for a test period to decide whether or not to separate permanently. Even if the couple decides not to get back together, the assets accumulated and debts incurred during the trial period are often considered jointly owned.
  • Living apart: Spouses who no longer physically reside in the same home are considered to be living apart. In some states, living apart without intending to reunite changes the spouses' property rights. Thus, all assets and debts accrued during the separation period belong to each individual spouse.
  • Permanent separation: When a couple decides to split up, it's often called a permanent separation. In most states, all assets and debts accrued after permanent separation are the separate property or responsibility of the spouse incurring them.
  • Legal separation: A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody and visitation rights, but does not grant a divorce. The money awarded for support of the spouse and children under this situation is often called separate maintenance.

What Do Typical Separation Agreements Contain?

Typical separation agreements between spouses can include the following terms:

  • An agreement to live apart
  • Agreements for custody and access to children
  • Agreements for the occupation and ownership of home and other property
  • Agreements for maintenance
  • Duration of marriage
  • Agreements for indemnity from the other spouse's debts

Separation Facts

  • If a legal divorce is desired, a divorce action must still be filed, even after a separation proceeding.
  • Some states require that you live separate and apart for a period of time before a no-fault divorce can be granted.
  • Some people have religious objections to divorce and find that a separation is easier to cope with.
  • Some couples stay legally married for reasons such as tax purposes, health insurance, and the interest of their children.

Do I Need an Attorney to Obtain a Separation?

Depending on what state you reside in, separations often require a court hearing and thus, consultation with an attorney. It may be wise to speak with a family lawyer prior to seeking a separation, in order to establish all rights and responsibilities concerning the children and each spouse's debts and assets. Meeting with the proper lawyer will help you understand your rights as well as preserve any possible remedies you may have.

Vea esta página en español: Separaciones (Matrimoniales) o visita para más información legal.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 07-02-2018 12:11 AM PDT

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