Legal Separation vs. Divorce

A divorce is the legal termination of the marriage. In a legal separation on the other hand, the parties continue to remain married but live apart. The court will determine the rights and obligations of the parties in a legal separation. Once a divorce decree or judgment is passed by the court, the parties are no longer married. Legal separation is not a common happening but can be of use in a situation where the parties can deal with any financial or personal issues affecting their marriage. In a proceeding for legal separation, the court will decide on the following issues just like it would in case of a divorce proceeding:

Maintenance – The court can order one spouse to pay alimony and child support but uses a different term – separation maintenance – to describe the payments. A spouse filing for legal separation must file the papers through a motion pending litigation. The court’s decision on separation maintenance influences future awards if the spouses file for divorce later on.
Property Division
• Child Custody
• Visitation Rights

Like in a divorce, the property division is influenced by the circumstances of the case. The following are some of the common forms of separation.

Trial Separation

In trial separation, the spouse lives apart for a period of time to determine whether or not they should continue with the marriage. This type of separation does not have any legal affect. In a real separation the court can pass orders that will affect the property rights as well as the obligations of the spouses. The trial separation period is seen as a period of time in the marriage. Any property acquired during this time will be considered marital property, even if the couple never lives together again. Until the couple terminates the marriage, any property acquired will continue to remain marital property. Please check with your state law.

Living Separately

Sometimes, the couple may start living apart with no intention whatsoever of continuing the marriage. In some states, to be eligible for a no fault divorce, the couple must have lived separately for a certain period of time. If the spouses live separately, it can affect property division. In some states, property and debt accrued while the spouses are living separately will be treated as marital or separate property depending on whether either spouse wants to terminate the marriage. For example, community property states treat all assets and debts acquired till the intent to terminate as community property while any asset or debt acquired after the intent is considered as separate property. In some states any property or debt acquired while living apart will be considered as separate property no matter what the intention of the spouses are. In some states however all property acquired during such time will continue to remain marital property until the spouse file for divorce. Please check your state laws.

Permanent Separation

A permanent separation is where the couple decides to separate permanently. This type of separation also has no legal effect unlike a legal separation where one of the spouses has filed paperwork in court seeking a legal separation. In most states, property and debts accrued after a permanent separation are considered as separate property. However, debts acquired after the permanent separation but prior to the final divorce and used for family purposes such as rent, home maintenance, utility payments, etc are considered as joint debts.

State laws vary. Please check with your state laws. The exact circumstances of the couple can also affect the determination of property rights and obligations. Talk to an experienced family law attorney.

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