A legal separation is a court-ordered arrangement after a married couple decides to live separately. A legal separation is an alternative to a divorce when the parties are unsure of the state of their marriage but want to establish financial boundaries and responsibilities, such as separation of assets, custody of dependents, and child support. Legal separation does not terminate a marriage.
There are many reasons for seeking a legal separation. Some common ones deal with religious beliefs and lifestyle preferences. Legal separation gives some couples that desired flexibility to make a decision about the future of their marriage. Divorce has harsher consequences in the sense that the marriage is terminated.
Couples with minor children often state that a legal separation is more ideal for their children than a divorce. Although the parents function as a separate unit, the family may still remain together, while maintaining stability and order, for the most part. Lastly, some other reasons include to retain health and retirement benefits. Many couples choose to separate without a court order as it is simpler and avoids lengthy legal proceedings.
What are the Benefits of Legal Separation?
Depending on what each couple’s circumstances are, there may be some benefits provided for a legal separation. If a couple decides to legally separate, here are some considerations to keep in mind:
- Military spouses must remain married for a decade to take advantage of the benefits provided by the Uniformed Services Former Spouse Protection Act;
- Being married for at least 10 years means being able to take advantage of certain spousal social security benefits. If at retirement, your spouse will draw more social security than you, it is beneficial to be married for a minimum of 10 years so you can withdraw a larger sum by drawing on your spouse’s social security retirement;
- Sometimes a legal separation makes sense when a divorce does not;
- A legal separation can be temporary, while a divorce is permanent;
- This may be the last attempt at saving their marriage;
- Additionally, a legal separation is often more cost-effective than a divorce; and
- Many parents find that their children adjust better to a divorce if they legally separate first.
Why Get a Legal Separation Instead of a Divorce?
Choosing between a legal separation and a divorce is often a matter of personal choice. Each scenario can be vastly different and it depends on how the couple wants to proceed. Many people have religious or personal beliefs that do not permit divorce, so a legal separation allows them to remain married while being able to live completely separate lives. A legal separation still continues your relationship at least to some extent, so you can remain connected to each other.
Additionally, as mentioned above, if you get a legal separation, you are still entitled to certain benefits, such as pensions that provide payments to surviving spouses. A legal separation can be a reflection point on the way to divorce. It can provide the couple the space to decide if this is actually what they want to do with their marriage. It allows a couple to resolve all the important issues such as custody and financial issues.
In a few states, a separation is required before you can obtain a divorce under certain grounds. There is often a waiting period of six months or one year during which you live separately. This is necessary before you can file for a divorce. But in other states, a legal separation can become the grounds for a divorce. You resolve all of the issues when you form your separation agreement, live under it for a period of time and then that agreement becomes the divorce decree after a period of time.
How Do I Get a Separation?
In general, there are several types of separations. A trial separation is an informal separation during which you live apart and decide if a separation or divorce is what you want. Many couples do this in the beginning when they are facing marital problems. It is important to keep in mind that anyone can separate at any time for any length of time and no court involvement is needed. If you and your partner are living in two different residences, you are considered separated.
A legal separation happens when the court formally declares you are separated. Not all states offer legal separation as an option though; therefore it is crucial to determine your state’s laws and see if they apply. If legal separation is allowed in your state, you can get a legal separation by filing a separation agreement in local family court. Moreover, you can also receive one by filing for a separation just as you would file for a divorce. A trial can also be held if needed in the case. Divorce and legal separation are both valid and useful legal options to consider when you are dealing with a failing marriage.
What are the Differences and Similarities between Legal Separation and Divorce?
There are important distinctions between a separation and divorce. The most basic difference is that you remain married during a legal separation and in a divorce, your marriage is dissolved.
Other differences include:
- Health care or other benefits: Legal separation allows for the retention of health care and other benefits that may include certain social security benefits;
- Marital status: Legal separation allows you to retain your marital status, meaning that you cannot remarry but once you are divorced, you can remarry;
- Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses are not next of kin;
- Debts or liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process;
- Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce terminates these rights; and
- Remarriage or reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.
Furthermore, in both divorce proceedings and in the proceedings for legal separation there are similarities, the court decides the following:
- Separation maintenance or alimony still ordered;
- Child custody order;
- Child visitation orders; and
- Property division – both legal separation and divorce property division is based on the couple’s situation and how it relates to the property.
Lastly, the decision to stay separated may have more to do with social considerations than financial pressures. For example, some couples with children may feel that separating is less confusing or easier for their offspring. And many couples do not see the benefits in filing for a divorce unless they want to remarry. With any situation, a couple’s decision to stay married, separate, reconcile, or divorce is personal and often based on many factors.
When Can I Contact My Lawyer?
If you are struggling to keep your marriage afloat and want to consider legal separation. It may be useful to research some local laws regarding legal separation in your state. If there are issues that may arise during the separation process, it may be useful to consult an experienced family lawyer that can navigate some of those issues for you.