Legal Separation

Legal separation is different from informal separation. This is because a court order defines the parties' legal rights during the separation. It differs from divorce because the marriage continues to exist after a legal separation.

Many married couples separate when they are contemplating a divorce or taking a break from their relationship. Legal separation is a legal process where a couple formalizes their decision to live separate lives.

Benefits of Legal Separation

Legal separation offers several benefits. It offers such benefits to couples wanting to remain legally married but live separate lives. Examples of these benefits include:

Financial Considerations

Legal separation allows a couple to keep certain financial benefits that are tied to marriage. Some financial reasons for legal separation include joint health insurance benefits and joint tax benefits. It may even include potential eligibility for pension or social security benefits.

At the same time, with legal separation, the division of assets and liabilities may be handled in a more temporary way. This is true of the division of bank accounts, retirement accounts, and any other accounts a couple may share. Where financial decisions like these are more final in a divorce, they are more temporary in a legal separation. The same is true of the division of property. Division of property may be handled in a more temporary way, as well.

Time for Reflection

Legal separation provides couples with time to evaluate their relationship. This is possible through a trial separation before seeking a more permanent separation.

Personal or Religious Beliefs

Legal separation allows for couples who have personal or religious reasons to maintain a marriage with an alternative option. The couple can remain married while living separately.

Legal Protection

Couples can negotiate separation agreements to provide clarity on their rights in a separation. Like divorce decrees, separation agreements settle issues like child custody and child support. They also allow for the settlement of issues like spousal support or alimony.

Potential Reconciliation

Having a structured agreement in place can relieve the couple of decision-making pressure. This is helpful because these situations are already difficult enough. This might give the couple an opportunity to work on their issues and attempt to reconcile.

Couples can agree to these matters without court involvement. Obtaining a court-approved separation makes it easier to enforce these rights if a dispute arises.

Legal Separation vs. Divorce

A court-approved separation doesn't end a marriage. The rights and obligations of each spouse are clarified under the separation order. But the marriage still legally exists. For this reason, people who separate legally may not marry a new spouse without breaking bigamy laws.

An advantage is that separated couples can easily return to life together should they decide to reconcile. If a couple chooses a formal divorce but wants to get back together, they must get married again. Unlike divorce proceedings, separated couples simply need to submit a request to the court to resume the marriage. A couple could decide to end the marriage permanently. But a legal separation agreement simplifies the divorce process.

Grounds for legal separation typically mirror state grounds for divorce. It can include the following:

  • Incompatibility
  • Abandonment
  • Adultery
  • Cruelty

Some state laws may have a mandatory waiting period before a legal separation can be finalized. Just as in divorce, child custody, child support, and alimony conditions can only be modified with court approval.

Some states have no-fault divorce laws. This means the divorcing couple does not have to prove fault or wrongdoing. Simply, they can seek a divorce based on irreconcilable differences or incompatibility. Similarly, a couple does not need to establish fault either but must show incompatibility.

Legal Separation vs. Other Types of Separation

Many couples separate without the intention to permanently split. They may use a trial separation to work toward reconciliation. Or they may decide to live in separate places for a period of time. In these cases, legal rights and obligations regarding children, property, and debts remain the same as they would in marriage.

Issues such as the division of marital property or what one spouse may owe in child support might be subject to agreement. With divorce or legal separation, a court officially revises the rights and obligations that characterized the relationship prior to the couple's decision to take a break. A court revises these rights and obligations in a legally binding way that wouldn't happen without court involvement.

Questions About Legal Separation? Contact an Attorney

Making the decision to end your marriage isn't easy, but sometimes it's the best option. Maybe your situation calls for trial separation or legal separation. Maybe it calls for a divorce. Whatever your unique set of circumstances, discussing these issues with a skilled family law attorney can help clarify your options and prevent uncertainty.

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  • You may not need an attorney for a simple divorce with uncontested issues
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  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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