Separation or Divorce

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The decision of whether to divorce a spouse is one of the most difficult decisions a person can face. Often, couples hesitate to file for divorce in the hopes that they can reconcile their differences in the future. For others, the idea of divorce is simply too permanent and daunting for them to move forward. Prior to making a decision regarding filing for divorce, it is important for couples to understand what “divorce,” in a legal sense, actually means, Lay people often uses the terms “separation” and ‘divorce” interchangeably. However, divorce and separation are two very different concepts under the law.

Divorce

Unlike a separation, a divorce is the legal ending of a marriage. Once a divorce decree is finalized by a judge, the formerly married parties have no more legal significance to each other than two strangers on a busy street. Though a divorce judgment, or decree, will outline the various legal obligations the parties may have to each other (spousal support, child support, insurance policies, etc.), in order to re-establish a legal marriage, the parties must actually re-marry.

Separation

In contrast to divorce, a separation does not legally end a marriage, but rather allows a couple something like a “trial divorce.” Indeed, the parties may enter a binding legal separation agreement that serves many of the same legal functions of a divorce decree. However, it is important that prospective divorcing couples understand the different types of separation: trial, permanent, and legal.

  • Trial separation: Specifically, a “trial separation” is any separation, legal or otherwise, which is not necessarily intended to be permanent. However, in common parlance, a trial separation means that a married couple has begun physically living apart to consider the possibility of filing for divorce. The parties are still legally married, and physical distance can often help both spouses test the waters of how a divorce would affect them and their children financially, emotionally, and as a family. In order to undergo a trial separation, the parties do not need to take any legal action to separate or to resume living together.
  • Permanent Separation: In the case of a permanent separation, the parties have determined not to reunite but, for a variety of reasons, have chosen not to legally end their marriage. The most common reasons for entering into a permanent separation are religious or moral objections to divorce, to enable one spouse to continue to receive the other’s medical benefits, and to allow a spouse who has not yet obtained U.S. citizenship to remain in the United States.
  • Legal Separation: Simply living apart does not mean that two spouses are legally separated. In a legal separation, the parties usually file some type of petition for separation with a court. The reason for doing this is so that a legally binding Separation Agreement. A separation agreement is much like a divorce decree in that it creates and outlines legal obligations that the parties have to each other, such as child support, spousal support, and medical and life insurance. Additionally, a separation agreement can distribute property, debt, and household bills between the parties. Parties often choose to enter into a legal separation agreement in order to protect their interests while they a) determine whether a divorce is the right course of action for their family or b) choose not to legally end their marriage for religious, moral, or other reasons. Because final divorce decrees often mirror separation agreements, each party should be sure to craft the terms of the agreement according to what they are prepared to live with on a permanent basis.

While trial, permanent, and legal separations can be useful tools for estranged spouses, legal separations are not recognized in the following states: Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas.

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