Legal separation and divorce, contrary to some thinking, are considered two separate things. Unlike divorce, a legal separation does not put an end to the marriage. You remain legally married while choosing to live separate lives.
During the time you are living apart, you have a court order that outlines the rights and responsibilities of each spouse. Issues that can be addressed in a separation agreement are division of assets and debts, child custody and child support, visitation schedules and spousal support.
In a sense, legal separation is a form of temporary divorce. While the word divorce implies a permanent separation, legal separation is meant to be temporary and does not automatically lead to divorce. Couples can reconcile, but if they wish to move on and get a divorce, they will have to go through the divorce process dictated by where they live.
If you divorce after a separation and your case goes to court, a judge is likely to assume that since you were satisfied with the separation agreement, the agreement should carry over to the divorce settlement agreement. For that reason, it is important that you come to a separation agreement you can live with long term.
Legal Separation Is Not Recognized In All States: Many states do not provide for a legal separation process. Rather, the concept of “separation” in those states is primarily used to establish that the parties have not lived as a married couple for the required time before the divorce decree is entered. The state of Washington recognizes legal separation for those not wanting to divorce, but to remain apart for a period of time.
Separation Agreements Can Turn Into Divorce Settlements: If you think that you might eventually file for divorce, you should be especially careful in negotiating and drafting a legal settlement agreement. This is the legal contract that sets out the terms of the separation. Many legal separation agreements are converted into divorce decrees by the Court. Courts often assume that if the parties were satisfied with the separation agreement, there is no reason a divorce decree should not continue with the existing conditions.
Legal Separation And Your Property Rights: While parties who are separated retain all the same rights to marital property as those who are not legally separated, courts often use the date of separation as an unofficial cut-off point for property rights. This means that if you obtain a legal separation and your spouse later wins the lottery, the court may decide that you are not entitled to some or any of the winnings, even though the money is technically marital property. Before filing for separation, find out if your state requires the court to make an “equal” distribution or an “equitable” distribution of the marital property.
Legal Separation Can Equal The Emotional And Financial Upset Of Divorce: Often times, people think that filing for separation will be easier on everyone than filing for divorce. However, if you file for a legal separation, you will still have to go through the process of negotiating a host of issues such as child custody, visitation, child support, spousal support and property distribution, same as you will in a divorce. The difference is that you go through all of that without actually being divorced at the end of the process. It can still remain an emotionally and financially charging time in your life. The advantage of separation is that it allows couples time away from the conflict of marriage to decide if divorce is what they truly want.
The lines can often be blurred when it comes to individual differences between legal separation and divorce. As stated, it’s more of an overarching difference meant to give marriages a chance to take a break in an attempt to solve their issues and move forward, rather than just having a black and white decision of marriage or divorce. Some of the differences specified between legal separation and divorce will vary due to the state’s laws and jurisdiction when handling these kinds of cases.