Legal Separation Overview

A married couple can separate when they contemplate a permanent split or work towards eventual reconciliation. However in a legal separation the parties continue to remain married but live apart. The court will determine the rights and obligations of the parties in a legal separation. The main difference between informal separations and legal separations is that in legal separations, the separation must be approved by the court. Unlike a divorce which terminates the marriage, the marriage continues to exist even after the court orders legal separation.

Advantages

Legal separation is ideal for couples who do not want to live together but want a legal clarification on issues like property division, child custody and support. Legal separation is ideal for couples who want a permanent separation and not for those who want a trial separation. There are many reasons why a couple may opt for legal separation instead of a divorce – religious beliefs and taxes benefits associated with marriage are the two most common reasons.

Legal separation clearly identifies the rights and obligations of the spouse just like a divorce order. The court will decide on the issues like property division, alimony, child custody and child support. When a couple can mutually agree on these issues, obtaining a court approval in the form of a legal separation makes it easier to enforce the agreed terms in case of a future dispute.

The state law provides the various grounds for divorce. A couple can seek legal separation on similar grounds including cruelty, adultery, abandonment and incompatibility. Once the court passes an order for legal separation, the spouses can modify the terms of custody and support only with court approval.

Legal Separation versus Divorce

Legal separation does not result in the end of the marriage. Only the rights and obligations of the spouses are clarified by the court. The marriage continues to exist for all legal purposes. So if you are legally separated and you marry someone else, you will be breaking the bigamy laws.

The benefit of legal separation over divorce is that if the couple want to reconcile, it is easier for them to do so. Legally separated couples need not remarry. They just need to request to court that ordered the legal separation to modify or withdraw the order to allow them to resume their marriage. If the spouses are looking to permanently terminate their marriage, a legal separation makes the divorce process simpler.

Legal Separation versus Other Types of Separation

A married couple can separate without the intention to split permanently split. They may use a trial separation period to see if they can reconcile. In such cases where there is no legal separation, the legal rights and obligations of the spouses will not be affected.

The spouse in such non-legal separation can agree on the various issues such as property, child custody and support. However the court will not put its stamp on the agreement between the spouses as it would in the case of a legal separation or divorce. If you have to decide between separation and divorce, consult with an experienced family law attorney for advice.

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