Separation & Divorce
Many people are confused about the meaning of separation prior to a divorce because there are actually four different types of separation that pertain to divorce. Separation in a divorce is typically an agreement and arrangement between spouses to live in different locations prior to the completion of their divorce. A formal separation agreement will also dictate how the issues of property division, child custody, debts, child support, alimony and visitation will be resolved in the settlement process.
However, each of the four different types of separation can have their own effects on the division of assets and debts. The first type of separation is a trial separation where a couple lives separately for a period of time before they decide whether or not they will get back together or separate permanently. Most trial separations are informal agreements and have no legally binding effect on the distribution of assets and debts, even those assets accumulated during the period of trial separation.
Living apart is the second type of separation that occurs is when both spouses live in separate homes for a length of time without any effort made toward reconciliation of the marriage. Living apart triggers different rules in different states and some allow the assets and debts accumulated while living apart to be considered separate property. In other states it will be considered joint property. Some states now require a set period of living apart as a mandatory prerequisite to filing an uncontested divorce.
Permanent separation is the third type of separation and is the situation created when a couple lives apart permanently. Unless one spouse files for a formal court-ordered separation, a permanent separation will usually be the sole decision of the couple involved and will not be recognized by the court. In most informal permanent separations, any assets and debts will be the responsibility of the person who incurred them. However, some states can consider them to be legal joint responsibilities until a divorce is finalized. Most states now consider debts incurred maintaining the family home and supporting the children as joint debts despite the permanent separation. Until a divorce occurs, the debts are joint responsibility.
A legal separation is the fourth type of separation and occurs when there is no divorce, but the court does make a legal determination on property and support issues. Legal separations can cover nearly the same issues as a formal divorce and the authority of the court can legally enforce them if necessary. The main difference is that a final divorce is not granted in a legal separation.