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Contested Divorce

What is the Difference Between Legal Separation and Divorce?

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By Liz B. Gatsby
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What is the difference between legal separation and divorce

Legal separation and divorce offer similar relief. Both include orders regarding property division, child custody and visitation, spousal support and other miscellaneous matters.

However, legal separation may be appropriate for couples that don’t want to end their marriage or whose religious beliefs prevent them from getting a divorce. It can also allow spouses to maintain insurance or financial benefits such as filing taxes together.

Legal Separation

Legal separation is a way to resolve financial and custody issues in a marriage without ending the marriage. During a legal separation, spouses can live separately while a court decides issues such as property division, child custody and visitation, spousal support and more.

However, spouses are not free to remarry and may only be eligible for divorce once the process is complete. In addition, some states consider separated spouses next of kin for decision-making purposes and may retain the right to make medical or financial decisions on behalf of each other.

Additionally, a legal separation can provide an alternative to divorce for couples with religious beliefs that prohibit the dissolution of a marriage. Finally, a legal separation can allow a couple to keep insurance benefits that would otherwise end through divorce.

Child Custody

In many ways legal separation is like divorce, as spouses need to determine custody arrangements and address financial issues such as asset division. Some couples pursue legal separation for religious reasons or because they want a path back to full marriage if the situation improves.

In addition, the court must decide on child support obligations and whether one or both spouses should continue to participate in family health insurance policies and receive spousal tax benefits. Couples may also have to split any new debt that they incur during a legal separation.

Divorce ends the marriage, but legal separation does not. As a result, separated spouses remain next of kin to each other and cannot marry someone else. They are also still responsible for any joint assets or properties they acquire during the separation period, as well as shared liabilities.

Child Support

A legal separation is a form of marriage in which the couples live separately and lay out legally binding agreements for their property, debts, custody and support. Unlike divorce, legal separation does not terminate the marriage, meaning the couple is still married and can reconcile or move forward with a full divorce later on.

Personal or cultural reasons might prevent a couple from seeking a divorce completely. In these cases, a legal separation might make sense for them.

During legal separation, spouses remain next of kin for each other, giving them the right to make medical or financial decisions for one another. This changes when the couple moves on to a divorce. However, while legal separation is a good option for some, it does not end the marriage and the spouses are still responsible for any new debts incurred during the separation period.

Property Division

A legal separation outlines the rights and obligations of a married couple who is living separately, while divorce dissolves the marriage. A legal separation can be helpful in some financial circumstances because it allows couples to retain tax benefits or insurance that would end with a divorce.

In a legal separation, spouses must identify all assets and debts in order to determine what will be divided. This includes separate property, such as a business or home that you owned before marrying, and marital property, which is everything acquired during the course of the marriage.

During a divorce, a court will divide property equitably between the two parties. This may include homes, cars, businesses, credit card debt, and more. In addition, a judge will also decide how to divide decision-making power in the marriage.

Debt Division

The property and debt part of divorce involves formally getting a judge’s order about what is community and separate property. In most states, property includes everything that you or your spouse earned or took out a loan for while you were married.

Separate property is anything you owned before marriage. It might be hard to determine what’s separate versus marital property, particularly when couples mix their separate and marital assets (like money in joint bank accounts or retirement plans) together.

In some unique circumstances, a judge might allow you to use your separate property to pay for a debt incurred by your spouse during the marriage. Whether or not the judge will do this depends on your state’s laws. It’s important to discuss this with your lawyer.

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