There is a pervasive misconception that a legal separation is the first step in getting divorced. While legal separation can be part of the divorce process, it is not a requirement for dissolving a marriage.
What Is A Legal Separation?
A legal separation is a formal and legally binding agreement that divides debt, assets, and property between spouses; it will also address the issues of support and custody. Creating a separation agreement is similar to getting divorced, with the main difference being after a legal separation is finalized, you are still married.
What Are They Used For?
Legal separations are often used by men wanting to protect their interests during a trial separation. Additionally, men who don’t want to divorce due to personal or religious beliefs, or wish to allow their spouse to retain medical benefits, will choose legal separation instead of divorce.
Legal separations are beholden to the same rules of law and procedures as a divorce and can set a precedent that will carry over if a divorce is pursued.
The courts will usually assume that you were satisfied with the terms of the separation and therefore will apply the same arrangement to your divorce. Because a legal separation will lay the foundation for a future divorce, it is imperative to protect your rights from the beginning.
Type Of Separation
There are several types of separations and these variations have contributed to some of the confusion surrounding legal separation. The most common types of separations include:
Many couples in troubled relationships will take time out from the relationship to determine if ending the relationship is the best course of action. Trial separations can provide space to evaluate the consequences and benefits of a divorce. They do not require the involvement of the courts, but it is important to keep in mind that moving out or providing financial support during a trial separation can establish a precedent of support that the courts will consider if a divorce is pursued.
As the name implies, the couple ceases living together. Some couples will continue to work on their relationship after moving out and others will combine a trial separation with living apart.
If you are considering moving out, it is in your best interest to consult with an attorney before you move. An experienced attorney will educate you on your options and how to protect your rights while transitioning out of cohabitation.
Permanent separation is an end to a relationship and indicates that there is no chance for reconciliation. If you pursue a permanent separation it is advised that you file the paperwork to make the end of the relationship official.
If you don’t file for legal separation or divorce, you can still be held liable for debt your spouse incurs and she may be entitled to assets you acquire. Failing to file official documentation can create expensive complications down the road.
This is the most formal type of separation —it creates a legal agreement that is enforceable and recognized by the courts. A legal separation will provide the most protection if the relationship is unsalvageable and divorce is pursued.
Legal separation is an excellent alternative to divorce for people that want to end their relationship, but remain married for a variety of reasons. If you are considering a legal separation, speak with a family law attorney.