Separation and Divorce

The difference between separation and divorce is that unlike divorce, a legal separation does not put an end to the marriage. Legal separation is an alternative to divorce for people who can't continue to live together but do not want to end their marriage.

A couple is legally separated after petitioning the court to recognize their separation. Simply living apart does not constitute a legal separation.

All states except Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas recognize legal documentation of separation.

During a legal separation, you have a court order that outlines the rights and responsibilities of each spouse while they are living apart. 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.

The same issues addressed during the divorce process are also addressed in a legal separation agreement.

A legal separation can protect your interests until the decision is made to file for divorce. The separation agreement also sets a precedence for the divorce that may follow.

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 legal 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.

Advantages legal separation

Although a legal separation and divorce have many things in common there are some advantages to obtaining a legal separation rather than a divorce. Those advantages include:

  • It allows couples time apart, away from the conflict of the marriage to decide if divorce is what they truly want.
  • It allows for the retention of medical benefits and certain other benefits that divorce would bring to an end.
  • If your religious beliefs conflict with the idea of divorce, you are able to live separately and retain your marital status for religious beliefs.
  • If you are a military spouse, you may wish to remain married for 10 years so that you can take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act. Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse.
  • If the decision to divorce is made, the legal separation agreement can be converted into a divorce settlement agreement.

Alternative for Separation or Divorce could be a Civil Annulment.

Laws regarding Civil Annulment differ from state to state. You can research your state's laws here to become more familiar with what the process would involve.

Basically, a Civil Annulment is the legal process a couple goes through to have their marriage declared null and void. A court, for the following reasons can declare a marriage null and void:

  • If one spouse is below the legal age for marriage.
  • If either spouse becomes mentally or physically unable to take part in the marriage.
  • If either spouse fails to reveal they were previously married and divorced.
  • If either spouse withholds information such as impotence, sterility, criminal record or sexually transmitted disease.
  • If there is a close biological relationship between the spouses.
  • If either of the spouses felt forced into the marriage by the other or particular circumstances.
  • If either spouse was previously married and that marriage had not ended in divorce.

Children and legitimacy and civil annulment

Some states do not allow annulment if the marriage produced children.

In these states, the marriage can only end through divorce. In states that do allow annulment, the status of the children remains the same as they would in the case of divorce.

Annulment does not mean that your children automatically become illegitimate under any circumstance.

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