Almost Divorced

Aug 8, 2012 by

Due to economic pressures in the ongoing recession many unhappy couples are choosing to live separately instead of going through with a divorce. The number of people who choose to live separately has risen as many couples find that they cannot afford to obtain a divorce when it means selling off real estate, paying off debts and hiring attorneys. While there are still many couples that try out a period of separation in order to address the reasons their marriage might be falling apart, the reality is that more couples today are living apart without getting a divorce.

Living apart and separate falls under different rules in different states and an informal separation that is not court ordered will usually have no real legal status and for all purposes, the couple in question would still be legally married. The assumption that because they are living apart a couple has no further responsibility to a marriage and that the separation gives them most of the same rights as a divorce would is incorrect. There are different types of separation in marriage, but the only type that covers the many of same issues as a formal divorce and will be legally recognized by the court is a court-ordered separation.

The different types of separation each have different characteristics and when a couple is simply living apart temporarily it will have no legally binding effect on ownership of assets and debts, or any other legal aspect of the marriage. When a couple lives apart permanently without formal recognition of the court it can be considered a permanent separation in some cases as a few states now require a set period of living apart prior before a couple can file for an uncontested divorce. In those cases, living in separate homes for a long period of continuous time without any effort made toward reconciliation of the marriage, the living apart status can become more formal if recognized by the court.

Legal separation can occur when the court makes a legal determination on property and support issues but does not issue a formal divorce decree. The status of legal separation is not always available in all states or jurisdictions.  Depending on the jurisdiction, legal separation is designated by the court and creates a formal agreement that both spouses will be legally bound to. A period of separation often allows a couple time to get their affairs in order. If they don’t want to save the marriage, the legal separation period can simply be used as time to prepare for an inevitable divorce. The main difference between a legal separation and the less formal types of living apart is that a legal separation will outline each spouse’s specific duties pertaining to things like child care, visitation and other support. The lack of a divorce decree in a legal separation also means that neither spouse can remarry unless a formal divorce is completed.

Types of separation:

Trial Separation – Trial separation is simply when a couple lives apart while they decide whether or not to get a divorce and it is usually not recognized by the court.

Living Apart ““ Any couple that does not live in the same home is living apart. In most cases the property and debts that are created when a couple is living apart are the responsibility of the person who accumulated or incurred it unless the court orders joint responsibility.

Permanent Separation ““ Permanent separation is when a couple lives apart permanently. The assets and debts incurred after permanent separation begins are considered the responsibility of the spouse incurring them in almost all jurisdictions. Permanent separation is not usually considered legal separation by the court.

Legal Separation ““ Although there is no formal divorce granted, legal separation does require the court to rule on the division of assets, child custody and financial support. Spousal maintenance may be ordered for the support in legal separation instead of the alimony and child support that would occur with a divorce.

 

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