The decision on whether to get a divorce or legally separate from your partner can be confusing. Before you decide on which path to take, you need to understand the difference between the two and the legal ramifications of each.
What is a legal separation, and how is it different from getting divorced? This article explores the answer to this question in depth.
Legal Separation Definition
A legal separation is a court order that defines the rights and obligations of a married couple living apart and leading separate lives. It is usually the go-to alternative to a divorce where both parties are unsure about the future of their relationship but still want to establish certain boundaries as they work through their personal and financial issues. Some of these may include the division of assets, child support and custody issues, and spousal support.
What Does Legally Separated Mean
The reasons why a couple would seek a legal separation vary widely. In some cases, it may be due to religious beliefs, as some religions don’t believe in divorce. There are also those couples that go this route when they’re uncertain about the future of their relationship and perhaps hope to reconcile somewhere down the line.
In other instances, couples might view a legal separation as an ideal alternative to divorce when minor children are involved. While the parents operate as separate units, the family may remain intact to maintain order and stability in the home, for the most part at least. Another common reason for couples opting for a legal separation is to hold on to their health and retirement benefits, which might be lost in a divorce.
Recent trends reveal that a rising number of couples are choosing to separate without a court order to avoid the costs associated with formal legal proceedings. Each party’s ability to freely spend money from joint bank accounts or credit cards freezes the moment the date of separation is determined. The same applies to each party’s control over shared assets like vehicles and property.
Additionally, each spouse may become legally responsible for their individual debt. However, this all depends on the provisions of the separation agreement.
Keep in mind that a legal separation is just as serious as a divorce. They are both court orders that outline the duties and legal obligations of each party. Each spouse is bound by these provisions. If the couple does decide to proceed with a divorce, the presiding judge may consider the details of the legal separation agreement in their ruling.
Legal Separation vs Divorce
What is the difference between legal separation and divorce? The most apparent distinction between the two is that one dissolves the marriage and the other does not. Below is a list of the key differences between the two.
Debts
Depending on the obligations detailed in the legal separation documents, each spouse may still be responsible for the debts of the other. In a divorce, the issue of debt is addressed during the dissolution process.
Decision-Making Ability
While a couple may be legally separated, they are married in the eyes of the law. This means that spouses are still considered next of kin. This ceases to be the case once the couple divorces.
Health Care and Social Security Benefits
A legally separated couple still retains their health care benefits, retirement benefits, and all other benefits they may be entitled to. On the other hand, a divorce terminates these benefits.
Marital Status
Each spouse retains their marital status even while legally separated. They, therefore, cannot marry someone else until their existing marriage is dissolved. A divorced individual is free to remarry.
Property Rights
If one spouse dies while they were legally separated, the surviving partner retains their legal rights to property benefits. A divorce terminates those rights.
Reconciliation/Remarriage
Divorce is permanent, meaning it cannot be reversed. The only way to reconcile with your partner will be to remarry them if a legal reunification is what you’re after. A legal separation makes it much easier for spouses to reconcile.
How to File for Legal Separation
First off, it’s important to note that other types of separation exist. There’s a trial separation where both spouses live apart to determine whether a legal separation or divorce is what they want. This is usually the go-to option when couples start having marital problems.
There’s also a permanent separation where both spouses live apart with no intention of ever reconciling. Such parties are considered permanently separated even though they are not divorced.
Keep in mind that some state laws do not permit legal separation. Learn what your state laws have to say about it to determine whether it is a viable option for you. If your state permits it, you can file for legal separation by submitting a separation agreement to the courts. Alternatively, you could also file for one just as you would when filing for a divorce.
How Much Does a Legal Separation Cost
The precise amount you’re likely to spend all boils down to the state you reside in and whether one of the spouses contests the separation. An uncontested separation can settle for anywhere between $50 and $1,000.
For instance, the court filing fee for a separation petition in New York costs $210. The average cost of a contested legal separation involving complex matters like spousal support and legal decision-making is in the $50,000-$100,000 range.
The length of the separation process varies depending on the state in question and the complexity of the legal separation documents. The typical duration is 6-12 months.
Get Help From a Competent Attorney
Given the fact that each state has its own laws pertaining to debt and property division, it is always a good idea to consult with an experienced divorce attorney if you’re thinking of getting a legal separation from your spouse. That way, you can make a decision based on your current and future circumstances once you understand the legal ramifications involved.
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