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Legal Separation vs. Divorce

In a legal separation, the parties are still married, versus a divorce where the marriage is ended. A legal separation is a court order that mandates the rights and duties of a couple while they are still married, but living apart. In a divorce, the spouses are no longer married. Legal separations are not too common, but can be helpful to a situation where the spouses work through any personal or financial issues affecting the marriage. In proceedings for legal separation, the court decides the following, much as it would in divorce proceedings:

  • Separation maintenance: this includes spousal and child support, but is called something different to distinguish it from the effects of a divorce. The court papers for separation maintenance are usually filed by a lawyer through what is referred to as a "motion pending litigation". The court's decision on awards for separation maintenance does influence what each spouse is awarded should they later continue to divorce proceedings.
  • Child custody
  • Child visitation
  • Property division

Property division during legal separations and divorces are typically determined by the couple's situation and how it relates to the property. The following situations are common forms of separation affecting property division:

Trial Separation

A trial separation refers to a period of time during which spouses live apart to decide whether or not to continue the marriage. This trial separation has no real legal effect, unlike a legal separation where the parties are ordered by a court to fulfill certain property divisions and duties. Instead, a trial separation is viewed as a period of time in the couple's marriage. Any property or debt acquired during a trial separation is still considered to be acquired during the marriage, and hence, probably marital property. This is true even if the couple ultimately never gets back together. Not until either spouse decides to end the marriage does this property classification have the potential to change (depending on the state the couple lives in).

Living Separately

Sometimes, circumstances arise that lead to couples living apart with no intent, one way or the other, to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on what state the couple lives in. Some states determine the property classification based on whether either spouse has the intent to end the marriage. For example, in community property states, all property and debt acquired before this intent to end the marriage is still considered community marital property. When one of the spouses gains the intent to end the marriage, then all property and debt acquired thereafter is separate property. Other states consider property and debt acquired while merely living apart to be separate property, regardless of the spouses' intent. Still other states consider all property and debt to be marital property until the divorce complaint is filed with the court. Be sure to check your own state's laws to see how they address property.

Permanent Separation

Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has actually filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for things necessary for the family, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the care of the children.

Because each state has its own laws regarding property and debt division, it is important to check your own state's laws. These determinations can become quite convoluted due to the changing of the couple's circumstances, so it is a good idea for each spouse to consult his or her own attorney for help. An attorney can also help you sort through the consequences of a legal separation vs. a divorce in your particular situation.

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