What Is Marital Separation?

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 What Is Marital Separation?

A marital separation is when a married couple decides to separate and live separate lives legally. This is often done when the couple is contemplating divorce, but they are not completely sure they want that. Legal separation involves going through the same process as getting a divorce.

Most importantly, the two people will create a document outlining the terms of the separation – who gets the house, who owes the Visa debt, how much will the child support be, etc. This document will be carefully reviewed by a judge in the family courts, and the judge will enter it into the system as an order.

This means that the two people must do or not do everything it says in the legal separation order. If one party does something against the terms of the order (for example, if a party denies the other person their visitation rights), the one being harmed can go to court and get the judge’s backing to enforce the terms of the order.

(If the parties cannot decide on the terms of the agreement, the judge will use their discretion to write an order putting into effect whatever the judge deems proper.)

Legal separation does not always lead to filing for a divorce, especially in circumstances where the couple has stopped fighting with each other, but they do not wish to live together again. Other situations where couples will consider being legally separated instead of divorced include:

  • Where religious or ethical beliefs make obtaining a divorce unacceptable
  • When the divorce laws of a specific jurisdiction are too restrictive. In a legal separation, the parties can often avoid problems found in the state’s divorce law by agreeing to resolve the issue(s) themselves, outside of the strictures of the divorce code.
  • Separation of assets: This issue arises when a couple no longer wants to accumulate marital property. There are two ways of holding property in a marriage: community property (i.e., marital property) and individual property. As the names suggest, community property is owned by both parties, and individual property is not. While a couple is married, there is a strong presumption that all of their property is community property and should be divided evenly in a divorce. One reason to get a legal separation instead of just living apart is that in a legal separation agreement, the parties can decide that any property obtained by either party after the date of the separation agreement is individual property, not community property.
  • When a couple wants to keep their married status to receive certain financial or medical benefits, such as for tax, inheritance, or healthcare purposes

To get a legal separation, the parties must agree to each term of the order of separation – in effect, they design the rules that will govern them. If a couple cannot, or does not want to, try to resolve their differences, instead, they will ask the court to decide certain issues,

What Happens During a Marital Separation?

Just as in a divorce, the couple must disclose all of their property and assets to determine how to divide them between the two of them. The couple may need to file for a court order to establish spousal support (alimony). If children are involved, the couple must determine custody arrangements and create a visitation schedule. The couple will also need an order determining how much child support will have to be paid and by which party.

Legal separation and divorce can also have similar consequences concerning the couple’s joint property. This is especially true in situations where the couple has set up a joint bank or investment accounts, has entered into prior agreements together (e.g., a mortgage), or if they have been operating a business together.

What is the Difference Between Divorce and Marital Separation?

A divorce legally terminates a marriage, and you are allowed to remarry. However, a legal separation does not end the marriage, and the parties are not free to remarry.

If you obtain a divorce and then decide that was a mistake, you would need to remarry your spouse to be married again. However, with a legal separation, the couple simply needs to submit a request to the court to be considered a married couple again.

Divorce for a legally separated couple may be expedited because they already have a formal separation order, which typically addresses all of the issues they will face in a divorce (property divisions, child support, visitation, etc.)

Despite having some similarities, legal separation has a few aspects that differentiate it from divorce. For example, in a legal separation, one spouse can often claim benefits from the other spouse because they are still legally married. This can include military-related benefits, filing joint taxes, and some claims involving employment matters. An ex-spouse would not have the right to claim any of those benefits.

Why Should You Consider Marital Separation?

With a legal separation instead of just separating, couples can have legal clarity concerning their issues, just like with a divorce order. Property rights between the couples are divided, as are child custody, child support, and spousal support rights and obligations. While the spouses can simply agree to such matters without court involvement, obtaining a court-approved separation makes it easier to enforce these rights in case disputes arise later on in the process.

There are many reasons why a couple may consider a marital separation instead of a divorce. Below are some situations where a legal separation is preferable to divorce:

  • Either one of the couple belongs to a religion or holds a faith that does not allow or looks unfavorably upon divorce. A legal separation allows the parties to go on with their lives separately without violating their religious beliefs.
  • A couple may choose legal separation because they are not convinced that divorce is the best option for them. Legal separation allows flexibility for the couple to live apart and not change their legal status because of the law, so they can return to their life as a married couple if desired.
  • Financial costs may also play a big role for the couple in choosing legal separation over divorce.
  • They wish to keep their tax status as “married filing jointly.” This status often leads to lower taxes than would be levied if each spouse filed a separate tax return
  • Remaining married for at least 10 years means the spouses can take advantage of certain spousal social security benefits. For example, if at retirement, your spouse will draw more social security than you, it is beneficial to remain married for a minimum of 10 years to gain a larger sum by drawing on your spouse’s social security retirement.

Despite the pain from a split, in some cases, a legal separation is more feasible than a divorce because a legal separation is temporary while a divorce is permanent. Some couples are legally separate when trial separations do not work out.

For some, legal separation may be the final chance or last attempt at saving their marriage. Additionally, a legal separation is often more cost-effective than a divorce, and many parents have found that their children are better able to adjust to a divorce if they legally separate first.

Should I Contact a Family Lawyer?

If you or your spouse are considering a marital separation, it is important to figure out if legally and financially it is the right option for you. It can get complicated for property division, child support, and spousal support. Therefore, it is advised to seek out the local state family lawyer to assist with the matters. Your attorney can inform you of your legal rights and represent you in court during legal proceedings.


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