When a couple decides to formally separate without filing for divorce, it is considered a legal separation. The couple remains married under the law and can reconcile or decide on a divorce in the future. However, there is still a legal process that needs to be completed. The couple has to go to court to establish legally binding agreements regarding property division, child custody and support, etc.
Typically, there is no set duration for the legal separation. It varies depending on each case. But, if you plan to use your separation agreement as the basis for a divorce later, you and your spouse must have been living apart for at least one year.
Legal separation is when everyone follows a living arrangement according to a written agreement. If a spouse fails to comply with the agreement, the family court can enforce it. Unlike a divorce, legal separation does not terminate your marriage. Below are some common reasons why a couple may choose to separate rather than divorce:
- The couple is not committed to getting a divorce;
- There are financial constraints that prevent the couple from getting a divorce; either of them cannot afford it, and;
- The couple wants to keep financial benefits, such as continued health insurance.
Furthermore, a separation agreement is a crucial legal document that dictates the couple’s behavior while maintaining the relationship separately.
What Is a Separation Agreement?
A separation agreement is a binding legal contract between the spouses. It highlights the terms and conditions of the separation, similar to a divorce decree. Separation agreements generally include the following issues: division of marital property, allocation of parental responsibilities, child support, child custody, and spousal support.
For the distribution of marital property, you can create a list of all your assets and determine how to divide them. It is crucial to include all the property in your separation agreement. You can include pension and retirement information as well. The residential property is a valuable asset, and deciding who will live in it should also be included in the separation agreement.
Next is determining the allocation of parental duties. With this, you can choose who will maintain the day-to-day activities of the children and who will be financially responsible for the children. Child custody must be clearly defined in the separation agreement to ensure its enforcement. For instance, you will have to decide who will have sole custody of your dependent children or if you will have shared custody, known as joint custody.
Moreover, many agreements also include visitation schedules that determine the time spent with each parent. For example, a regular visitation schedule (times during the week that each parent is allowed visits with the child) and a vacation visitation.
Typically, the non-custodial parent is financially responsible for the child. Child support can include costs related to school activities, health insurance, food expenses, and other expenses for children. The agreement needs to have a system designated to the paying parent on how much and how often the payments need to be made.
Remember that legally separated spouses must live separately at all times. Also, the agreement needs to specify the amount of spousal support you or your spouse will pay the other and for how long. It is critical to consider the terms of your separation agreement carefully. If you decide later to obtain a divorce, the terms of your separation agreement can become the provision of your divorce.
What Are the Differences Between Legal Separation and Divorce?
There are many differences between legal separation and divorce. The following are some examples of them:
- Marital status and taxes: There are certain tax benefits when the couple is married. Therefore, couples choose to stay legally married to recoup these benefits. Since a separation does not terminate the marriage, the couple can still enjoy these benefits. The taxes can be filed jointly or married separately, depending on their agreement. Divorced couples have to file single again;
- Insurance: When a couple legally separates, they may keep the other person covered under their insurance plans. A divorce leads to one partner losing coverage;
- Legal and medical decisions: Many states consider separated couples next of kin. This implies that during emergency legal and medical decisions, they can intervene on the person’s behalf. However, divorce means these relationship privileges are terminated;
- Property ownership: Property ownership remains untouched during a legal separation, but a divorce results in dividing property ownership and;
- Debts and liabilities: A legal separation outlines what debts remain joint and what becomes an individual’s responsibility. But, in a divorce, the debts are separated and allocated to their owners.
What Is a Divorce?
According to the American Bar Association, a divorce or dissolution of marriage is a decree by a court that terminates a valid marriage. Once divorced, both parties can remarry. The court divides property and orders spousal support and, if children are involved, award custody and child support. Each jurisdiction has different procedures and measures for handling the divorce proceedings. It is recommended to research the respective state you reside in to follow the regulations in your state.
Most jurisdictions offer a no-fault basis for obtaining a divorce. A no-fault divorce is one in which neither person blames the other for the marriage breakdown. There are no accusations and no need to prove guilt or cause. The common grounds for no-fault divorces consist of irreconcilable differences and irretrievable marriage breakdowns.
Once the case is filed with the court and the necessary legal documents are presented, the court will decide. Another common basis for no-fault divorce is if the parties do not live together for a certain time, such as for six months or a year, with the intent that the separation be permanent.
Families recognize that there can be a no-fault basis for a divorce. Mainly because familial relationships are complex, and there is not one reason a marriage fails. Therefore, all states have some form of no-fault divorce that is available to use for those who need it. Furthermore, the spouses do not have to have a legal battle in court to decide who is right and wrong. They must rather end quickly and avoid the immense emotional toll of this process.
What Are the Grounds for Obtaining a Divorce Based on Fault?
The grounds for fault-based divorce differ depending on which state you live in. Some states allow divorce in cases relating to adultery, physical cruelty, mental cruelty, attempted murder, abandonment, habitual drunkenness, use of addictive drugs, insanity, impotence, or infection of one’s spouse with venereal disease. However, even though these are reasons for filing divorce. Many opt to choose a fault basis to avoid the expense, stress, and potential embarrassment that can be inherent in providing those fault allegations in front of a judge.
When Do I Need to Contact a Lawyer?
Divorce and legal separation are common methods to separate or end relationships lawfully. They both have their pros and cons. Deciding between them can vary on many factors. If you are in this situation, you can contact a local divorce lawyer to assist you with your case.
