Legal separation is an alternative to divorce. Designed for people who can no longer stand living together but who don’t want to end their marriages right away for religious or other reasons, this process is an arrangement that is governed by a legal separation agreement. Legal separation agreements are legally binding, and provide details concerning child custody arrangements, spousal support, and particulars concerning living arrangements. Legal separation is different from just living apart. It provides certain stipulations that each party has to live up to and it provides legal protection in the event one spouse decides not to follow the rules.
Grounds For Legal Separation
The grounds for legal separation are often the same as the grounds for divorce. These include:
• Physical abuse
• Irreconcilable differences
• A spouse being sentenced to 3 or more years in prison
• Voluntary separation
The grounds for legal separation vary from one place to the next. Be sure to find out what laws in your local area allow before proceeding with the decision about whether to get legally separated instead of filing for divorce.
The Difference Between Legal Separation And Divorce
The primary difference between legal separation and divorce is that a legal separation recognizes that a marriage is valid and legal. There are some additional differences to be aware of. Legal separation isn’t recognized everywhere. In many places, there is no process for legal separation; instead, separation is a term that’s used to establish that the parties have not been living as a married couple. Before choosing between legal separation and divorce, be sure that both options are available where you live.
Legal separation may have an effect on any eventual divorce settlement. If you are primarily interested in legal separation now but believe you may want to file for divorce later, be cautious while drafting your legal separation agreement. This legal contract, which lays out all the terms of the separation, can sometimes be converted to a divorce decree and used as is. Judges often assume that since parties are happy with the terms of their legal separation agreements, they will be fine with a divorce decree that uses the separation terms as status quo. Legal separation can have an effect on property rights. One of the most important differences between legal separation and divorce is that in a legal separation, both parties retain rights to marital property. If a divorce follows a legal separation, the court may decide to use the date of separation as a cut-off point for property rights.
Similarities Between Legal Separation And Divorce
If you are considering becoming legally separated, it’s just as important to know about the similarities legal separation and divorce share as it is to know about the differences between the two processes. In most places, the same issues that are addressed during the divorce process are considered in the legal separation process. If you have children, custody arrangements will be made. Concerns including the sharing of joint property, responsibility for debt, and occupation of a co-owned home will be addressed as well. Legal separation and divorce have something else in common: Both procedures can be emotionally as well as financially upsetting. To become legally separated, you’ll have to go through the extensive process of negotiating issues including child custody, child support and visitation; property distribution and spousal support; and benefits such as health insurance.
Pros And Cons
Those who choose legal separation over divorce do so for many reasons. However, there are a few significant pros and cons that should be considered.
Pros- The major pros for legal separation are financial. Many but not all states still recognize legally separated couples as married and they are therefore entitled to the benefits of married couples. These include:
• Healthcare and insurance benefits.
• Tax benefits- a legally separated couple can still file income taxes jointly.
• Social security and pension benefits
• Avoid mortgaging or splitting the sale of a home.
Other pros include social reasons, such as feeling more comfortable as a married couple, or concern for any children or family involved.
Cons- Those who choose to remain legally separated may likely encounter the following challenges:
• Shared debt- as a married couple, the debt is often shared between both parties, even if their expenses are not.
• In the event of divorce- if the couple does eventually decide to divorce after a significant amount of time, it is possible that their separate financial situations will shift significantly over time and make divorce more complicated later on.
• Issues of Inheritance- if a couple chooses to remain separated and one or both spouses pass away, issues of their inheritance can become complicated, especially when they leave different instructions for their shared possessions.
Both legal separation and divorce are complex agreements that should be entered into only after making a careful analysis of the benefits and drawbacks of each. Before moving forward with a legal separation or divorce, research the laws in your area and be sure that you have a clear understanding of how either process will affect your life going forward. When a couple cannot stand to be around each other, they are often advised to file for divorce. But a divorce is not feasible in all cases. When there is a barrier to a couple divorcing, whether that barrier is their cultural or religious beliefs about marriage, their financial situation, or just their own perspective of the marriage and the prospect of ending it, legal separation can be a useful way to detach from each other without actually ending the marriage. Some legally separated couples do go on to divorce while others remain content living singly while legally separated. Still, others use their separation as a time to reflect on their marriage, repair the issues that drove them apart and find ways to be a successful couple.
Below are some common reasons why couples choose legal separation.
• Your Religion Prohibits Divorce: Many religions prohibit divorce. Sometimes, individuals’ personal convictions make divorce an unattractive, or even unacceptable, option. For individuals whose religious or philosophical beliefs make divorce a taboo subject, legal separation can be a way to exit an unhealthy marriage without actually violating these beliefs.
• You Are Not Sure if You are Ready for a Divorce: Getting divorced is a life-changing step. Legally separating from your spouse can be as life-changing, but it can feel less final. For the couple who is not sure if divorce is the right step, a legal separation can be a way for them to gain the space and perspective they need to see if it is time to end the marriage.
• You Need to Stay Married to Continue to Receive Certain Benefits: When one spouse is close to being eligible for Social Security benefits and the other will rely on these benefits, the couple may choose to legally separate so one spouse does not face financial hardship. They could divorce later so that spouse is eligible for divorced spouse benefits. This can also be the case for couples where one partner relies on the other’s employer-provided healthcare insurance.
It is not uncommon for a separation agreement to later become a divorce settlement. In your separation agreement, you can work out the following with the court:
• A parenting plan;
• A child support order;
• The division of your property; and
• A spousal maintenance order.
If you do decide that divorce is the right choice for you and your spouse, you can make the divorce process easy by submitting the terms of your separation agreement to the court as your divorce settlement. If you don’t want to continue living with your spouse but you are not certain you want a divorce, then you may want to consider a legal separation. A legal separation is similar to divorce in that you’ll have to negotiate child custody, visitation and child support, spousal support and the division of your property. Unlike divorce, you will still be legally married to your spouse, but you will be living separately. The key difference between legal separation and divorce is that when you are separated, you are still legally married to your spouse even though you are living apart. If you later decide to get divorced, you’ll have to go through the legal steps necessary to terminate your marriage.
There are several valid reasons why people choose to legally separate but remain married to one another. They include:
• You and/or your spouse oppose divorce for religious or moral reasons
• One spouse will soon become eligible for his or her spouse’s government benefits (such as Social Security)
• One spouse will remain eligible for the other spouse’s health care or insurance benefits if they remain married
• There is a tax benefit if you and your spouse remain married to one another
• You and your spouse think there’s a chance you may reconcile after you’ve had time apart from one another
• You are not yet eligible to file for a divorce under your state’s residency requirements or waiting period, but want a court-sanctioned separation agreement until you are eligible to file for divorce
• You and/or your spouse find it less stressful to negotiate a separation agreement than to negotiate a divorce agreement
If you decide to remain married because one spouse will be entitled to the other spouse’s benefits (such as Social Security or health insurance), make sure you read the fine print associated with such benefits. Some benefits will specifically exclude legally separated spouses from eligibility. If you’re having serious problems with your spouse, a divorce might seem like the only way to split off and protect your finances. However, a legal separation may offer the same protection as a divorce and in some cases works out better.
Reasons to Choose a Divorce
In other situations, a divorce may be preferred.
• If you don’t see any financial benefit from a legal separation and are certain you want to end your marriage, it might be best to go straight to a divorce. Otherwise, you’ll spend time and money getting a legal separation only to have to go through the process all over again to get a divorce.
• If you want to get remarried, you’ll also need a divorce because you can’t legally remarry with a previous marriage in place.
Deciding whether to get a legal separation vs. divorce can be confusing. To make a decision, it is important to understand the legal and emotional effects of both possibilities and weigh the options. Divorce and legal separation have similar effects in many ways. Both a divorce and a legal separation legally create a space between you and your spouse. You live separately. Your finances are separated. Child custody, child support, division of marital assets and debts, and spousal support (called alimony if you divorce) are all ordered by the court. Divorcing and getting legally separated both create an important division in your lives and create financial rules and boundaries that you are required to live by. The important difference between a divorce and a legal separation is that when you divorce, your marriage is formally ended. You are no longer married to each other. You are free to remarry. You live your life moving forward as a single person. When you get a legal separation, however, you remain legally married to each other. You must continue to mark that you are married on forms. You cannot remarry. You still have the right to inherit from each other. A child born to a married woman is legally the child of the other spouse unless proven otherwise. In some states, a separation is required before you can get a divorce under certain grounds. Often a waiting period of six months or one year during which you live separate and apart is necessary before you can get a divorce. In other states, a legal separation can become the grounds for a divorce. You resolve all of the issues when you create your separation agreement, live under it for a period of time and that agreement then converts to a divorce decree after a period of time.
Legal Separation and Divorce Lawyer Free Consultation
Whether you want a divorce or legal spearation, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506