Changing your marital status can be a challenging time in your life, and it is only made more difficult by having to decide how you'll approach it. Whether it's about financial decisions or emotional ones, separating from a spouse can be complicated and the right choice may depend on the specific circumstances. The two most common options are divorce or legal separation, and it's important to understand the key differences so you can make an informed decision.
When it comes to legal separation vs. divorce, each option has its unique advantages and drawbacks. If you are considering filing for either divorce or legal separation, it is important to talk to a family law attorney who can explain your rights and the potential long-term effects of such a decision. However, we've compiled some key information to help you better understand the differences between divorce and legal separation.
Divorce legally ends a marriage, initiating a process known as a divorce proceeding. This process involves the dissolution of marital ties, including the division of marital assets and decisions regarding child custody and child support. A divorce proceeding can be a complex and emotionally taxing process, as it involves the unraveling of financial, emotional, and familial bonds that have been established during the marriage. Issues such as spousal support, also known as alimony, are discussed and decided upon based on the partners' financial situations and the needs of any children involved. The divorce process culminates in a divorce decree, a legal document issued by a court that officially ends the marriage and outlines the rights and responsibilities of each party post-divorce.
Divorce is often the route taken when couples are unable to reconcile their differences or when there are extreme issues within the marriage, such as physical or emotional abuse.
Legal separation, or a legal separation agreement, does not legally end a marriage. Instead, when a couple is legally separated, they remain legally married but live separate lives. The couple enters into separation agreements, which outline the responsibilities and rights of each party during the separation period. These agreements often detail how assets, debts, and child custody will be handled. Despite the changes, legally separated couples may still be eligible for certain benefits, such as social security benefits that hinge on the spouse's work record. Legal separation can be a temporary measure, known as a trial separation, allowing couples the space to resolve their issues without ending their marriage. Trial separation is often beneficial to couples who wish to reconcile but don't want to live together until their issues are resolved. However, it can also be a step towards permanent separation if reconciliation proves unfeasible.
Legal separation is often the more attractive option for couples that have a shared religious background, as many religions discourage divorce. Additionally, legally separating can be an appealing option for those looking to avoid the lengthy and costly process of filing for a divorce or who do not yet meet the residency requirements for a divorce in their state.
How Does Each Affect Child Custody?
Both divorce and legal separation have implications for the custody of any children involved. In a divorce, the court will decide who will be granted primary physical and legal custody of the child or children born out of the marriage. The court also determines visitation rights and sets forth a schedule that must be followed by both parties.
In contrast, in a legally separated couple, each parent is typically given joint legal and physical custody of the children. This means each parent has an equal say in decision-making about their children, as well as extended visitation rights if they do not have primary physical custody.
Is There a Difference in Financial Implications?
The financial implications of divorce vs. legal separation can vary greatly depending on the state in which a couple resides. Generally speaking, however, both legal separation and divorce will have financial implications for the divorcing or separating couple.
In a divorce proceeding, all assets acquired by either spouse during the marriage are typically subject to equitable distribution. This means that the court divides marital property between the two spouses fairly but not necessarily equally. In some states, spousal support may also be issued if one spouse is unable to support themselves financially.
In a legal separation, assets are not necessarily divided between the parties as they remain married. However, couples may still enter into agreements about how marital property will be managed while living apart and who is responsible for any debt acquired during the marriage. Spousal support can also be addressed in a legal separation agreement.
Legal Separation vs. Divorce. Ultimately, the decision to divorce or legally separate is a highly personal one and should be made thoughtfully; taking into consideration all of the individual factors involved in each situation. If you are considering either option, it's important to seek out counsel from an experienced family law attorney or divorce attorney. A divorce attorney can help you better understand the legal implications of each option and ensure that your rights are protected.
Our team of family law attorneys is experienced in both legal separation and divorce proceedings. We can help you work through the complexities of your case to ensure that your rights, and the rights of any children involved, are protected. Contact us today for a free consultation.
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Dooley Gembala