The Legal Aspects of Getting Separated

If your marriage has hit a rocky patch, you might be considering a separation. Separation is often, but not always, the first step on the path to divorce.

If you are thinking about separating, there’s a lot to consider. This article will answer some common questions and discuss some of your legal options. But divorce can present complex legal issues. To get the best advice about your legal rights during divorce or separation, please talk to a family law attorney near you.

What Is Separation?

In family law, “separation” refers to a couple deciding to live apart. There are three basic types of separation:

• Trial separation: In a trial separation, a couple lives apart but has not yet decided whether they will divorce. A couple does not need to go to court to begin a trial separation.
• Permanent separation: In a permanent separation, a couple lives apart with the intent to divorce. The couple does not need court approval to enter into a permanent separation. However, they must clearly intend to divorce. Some states require that the couple live in separate homes during this period.
• Legal separation: Similar to a permanent separation, in a legal separation, a couple lives apart. However, in a legal separation, the couple does not necessarily intend to divorce. Some states let legal separations last indefinitely while others put time limits on them.

Most states allow legal separations, but some (Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas) do not. To begin a legal separation in a state that allows it, you must file a petition for legal separation with the court. At the end of the process, the court will issue a separation order.

What’s the Difference Between Separation and Divorce?

Separation and divorce are similar, but they are not the same. The biggest difference is the legal effect on the marriage. Marriage is a legal relationship between spouses. A divorce ends this relationship. Once a divorce is finalized, the marriage is over. The spouses are free to marry other people. The benefits flowing from that legal relationship also end. For example, neither ex-spouse can inherit from the other. The former spouse also loses access to financial entitlements like Social Security benefits.

Unlike divorce, separation does not end a marriage. After a separation — even a legal separation — neither spouse can remarry. Because they’re still married, the spouses remain each other’s “next of kin.” This means that even if they’ve been living separate lives for decades, each one can make important decisions — even end-of-life decisions — for the other. The marriage also continues the couple’s financial ties. Each spouse can inherit from the other. Each one can also access any joint financial or bank accounts.

Why Choose Separation?

There are several reasons why you might choose separation over divorce.

Some married couples choose trial separations to “test the waters” of divorce. If the trial separation doesn’t feel right, the couple might reconcile. But if it works for them, they can begin divorce proceedings.

Some couples separate so they can get divorced. For example, North Carolina requires couples to be permanently separated for 12 months before filing for a no-fault divorce. Couples in states with similar requirements often have no choice but to start separate households.

If you are opposed to divorce based on your religious beliefs or other reasons, an indefinite legal separation can be a good alternative. You can get away from your partner without compromising your morals or values.

Finances might provide another incentive to choose separation. Some couples enjoy the financial perks of marriage such as the tax benefits. An ongoing marriage also allows one spouse to continue using the other’s health insurance and other benefits granted to a legal spouse.

Finally, couples commonly use a separation to work through legal issues before divorcing. Many separated couples create separation agreements. These agreements can address issues such as child support, spousal support (alimony), child custody, and property division. The couple can ask the court to make the separation agreement part of the divorce decree. The judge doesn’t have to do this, but they typically will if they find that the agreement is fair, equitable, and in the best interests of any children.

Get Legal Help for Your Separation

A separation is a major decision. You’ll feel the emotional and financial impact for years to come. Because divorce laws can be complicated, you shouldn’t handle a separation or divorce on your own. Legal advice can help get what you need from the separation or divorce process. Use the LawInfo directory to find a family law attorney near you today.