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. Although legal separations aren't very common, they can be helpful especially while the spouses work through any personal or financial issues affecting the marriage. Because there are advantages and disadvantages to both processes, there are many things to consider when contemplating legal separation vs. divorce.
Legal Separation vs. Divorce: Differences
There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:
Legal Separation vs. Divorce: Similarities
In both divorce proceedings and in the proceedings for legal separation, the court decides the following:
Living Separately and Impact on Property Division
Circumstances may arise that lead to couples living apart with no intent 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 where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.
Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple's marriage. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and therefore, likely marital property.
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 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 family necessities, 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 children's care.
Questions About Legal Separation vs. Divorce? An Attorney Can Help
Because each state has its own laws regarding property and debt division, it's important to check the laws where you live. These determinations can become quite convoluted due to the changing of the couple's circumstances, so it's a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation vs. divorce.