Many married couples "separate" when contemplating a permanent split or working toward eventual reconciliation. "Legal separation," however, specifically refers to a court approved separation which defines legal rights and obligations, but doesn't permanently end the marriage. Legal separation differs from more informal separation because a court must approve and order legal separation. It also 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 who will live separately and want matters such as child support, child custody and property division clarified legally. 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, as are child custody, child support and spousal support rights and obligations. While couples can simply agree to such matters without court involvement, obtaining a court approved separation makes it easier to enforce these rights in case 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 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 wants to get back together, doesn't need to get married again. Rather, they simply need to submit a request to resume the marriage to the court. On the other hand, should a couple decide to permanently end the marriage, a legal separation order greatly 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 would owe in child support might be subject to agreement, but haven't been resolved as they may be in a divorce or legal separation order.
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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