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Legal Separation

Many married couples "separate" when they are contemplating a divorce or taking a break from their relationship. "Legal separation," however, specifically refers to a court-approved separation. Such a separation defines legal rights and obligations, while it doesn't permanently end the marriage. Legal separation differs from more informal separations because a court must approve and order it. It differs from divorce because the marriage continues to exist after a legal separation.

Benefits of Legal Separation

Legal separation appeals to couples who don't want to divorce but will live separately and want to legally clarify matters such as child support, child custody, and property division. The formalized separation typically applies to couples who foresee permanent separation, rather than a temporary trial separation. Common reasons a couple might wish to separate, rather than divorce, include the financial benefits of remaining married (such as tax incentives) and religious beliefs which may conflict with divorce.

Additionally, couples can reap the benefits of legal clarity similar to divorce orders. Property rights between the two parties are divvied up, along with child custody, child support, and spousal support rights and obligations as well. While couples can simply agree to such matters without court involvement, obtaining a court-approved separation makes it easier to enforce these rights in the event that disputes arise.

Grounds for legal separation typically mirror state grounds for divorce and can include the following: incompatibility; abandonment; adultery; and cruelty. Just as in a divorce, the child custody, child support, and spousal support conditions can only be modified with court approval.

Legal Separation vs. Divorce

A court-approved separation doesn't end a marriage. Though the rights and obligations of each side are clarified under the separation order, 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 couples can easily return to life together should they decide to reconcile. Unlike a divorced couple, a couple who have formalized their separation and later decide to get back together do not need to get married again. Rather, they simply need to submit a request to the court to resume the marriage. On the other hand, should a couple decide to permanently end the marriage, a legal separation order simplifies the divorce process.

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 decide to live in separate places. In these cases, legal rights and obligations regarding children, property, and debts remain the same as they would in marriage. Issues such as 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 its 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. Whether the situation calls for trial separation, legal separation, or divorce, discussing these issues with a skilled family law attorney can help clarify options and prevent uncertainty.

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