Separation vs Divorce: How To Understand the Process

How Does the Separation Process Work?

Separation is a court order that outlines each spouse’s responsibilities while they are apart. Factors like decision-making, child custody, child support, spousal support, and the division of marital assets can all be outlined for a married couple in a court order. However, separation does not change your marital status.

It’s important to note that while couples who opt for separation lead separate lives physically and financially, they are considered legally married until the court rules otherwise. No type of separation is a replacement for divorce, so you’re not legally allowed to marry anyone else while separated from your spouse.

The separation process will vary depending on which type of separation a couple decides to pursue. There are three different types of separation: trial separation, permanent separation, and legal separation.

Trial Separation

When a couple is considering divorce, but they aren’t sure if they want to legally end their marriage, they might try a trial separation for a period of time while they figure out their next steps. During a trial separation, a couple spends time living apart while they ponder the future of their relationship.

It’s wise to draft a separation agreement that you can reference during this time, which can be formalized in a court of law.

This agreement would be legally binding and serve as a rulebook for how financial decisions, child custody, property division, and other relevant matters will be handled while you and your spouse are apart. For example, you could use your separation agreement to dictate which of you will remain in the primary residence and who will move somewhere new.

Despite living apart, all income and assets acquired during the time a couple is separated would be treated as marital property (property laws may vary depending on your state of residence). Please refer to your state’s local laws and regulations for more information.

Legal Separation

A couple may have no intention of getting back together but still choose to forgo the divorce process. This could be due to their belief system or because they want to keep joint health insurance benefits for their young children.

A legal separation must be formalized in a court of law to be legitimate, and you would settle on the details of your legal separation agreement in court as well.

Similar to a trial separation, the agreement would serve as a rulebook for how property and other marital assets are divided, parental responsibilities, financial obligations, and more. Once the judge issues their ruling, the agreement will be considered legally binding. (Note that legal separation is not recognized in every state.)

This type of separation is not an option if you reside in Delaware, Florida, Georgia, Mississippi, Pennsylvania, or Texas. It’s also important to remember that in certain states, you may be required to hire an attorney before your separation can be considered legally binding.

Permanent Separation

Another option for couples who don’t wish to make amends, but may not want to go through the divorce process, is permanent separation. When a couple is living apart for a period of time without taking the steps to get divorced, they are seen as permanently separated under the law. If you decide to go down this route, it’s important to note your official date of separation.

This is a key factor in determining the future responsibilities of you and your spouse. On the day you permanently move into a new residence separately from your partner, make sure to mark the date.

After the date of separation, property rights and financial obligations will change (although property rights may vary by state). Once you’re permanently separated from your partner and a judge has formalized your separation agreement, you have the option to remain separated or file for divorce at a later date.

How Do Divorce Proceedings Work?

The divorce process will vary depending on the method for dissolution of marriage you select. There are many different types of divorce that can be handled either in court or outside of court. Please note that some states require couples to be separated for a set period of time state before they can formalize their divorce.

If you reside in a state that is subject to a waiting period, you won’t be able to present your final divorce case to a judge until that period is over. You might be wondering, “Why have a waiting period?” The purpose of having a waiting period is to ensure both parties are sure about their decision to get a divorce.

You may need a divorce attorney to represent you in your divorce if your situation is complex or you want guidance. However, you don’t always need an attorney when going through the divorce process. There are many types of alternative dispute resolutions that often cost less and save you time.

Mediation

Mediation is a type of alternative dispute resolution for couples looking to handle their divorce outside of court. A neutral third party (a.k.a. the mediator) can help a couple find common ground and guide them through the process, but they cannot offer legal advice or make any final decisions like a judge can.

The couple has to come to an agreement on any issues on their own.

Collaborative Divorce

Collaborative divorce is also a type of alternative dispute resolution. For this process to be successful, both parties must hire their own lawyer to help them reach a settlement agreement outside of court.

Divorce Arbitration

Arbitration is yet another type of alternative dispute resolution that is not allowed in every state.

For this process, the divorcing couple would hire an arbitrator, typically a lawyer or retired judge. They would issue a ruling just like a judge would if the divorce was handled in a court of law, except the entire process is much less formal. Unlike mediation, a couple won’t be able to make any final decisions on their situation themselves.

Fault vs No-Fault Divorce

For couples who go down the traditional divorce route, there are two different filing methods. Presently, all states recognize no-fault divorce, but some still allow divorcing couples to file using the fault-based method.

With the no-fault method, the filing spouse wouldn’t be required to state a reason for the divorce. They could simply state that the marriage has broken down with no hope of reconciliation.

However, if the filing spouse wishes to file using the fault-based method, they would have to prove their significant other is in the wrong and meets the legally acceptable criteria for “fault grounds." If you opt for this method, note that proving fault can be a difficult process to navigate on your own. You’ll also likely need to hire a divorce attorney to represent you in court.

The Bottom Line

The list above is by no means exhaustive, there are other types of divorce as well. The main difference between separation and divorce is that separation doesn’t legally end your marriage.

You’ll be considered legally married until you and your spouse have your divorce formalized by a judge.

A divorce will officially end your union, permitting you to remarry if you wish, although some states (and Washington D.C.) have restrictions surrounding remarriage. So, if you reside in one of these states, you would have to wait for a set period of time after a judge issues your divorce decree before marrying again.

While divorce may help you move on from your relationship more quickly, separation can be a wise decision for couples looking to reconcile in the future, honor their beliefs regarding marriage, or keep their joint health insurance for their children.

No matter why you choose separation over divorce, it’s important to understand the process so that you and your spouse can travel forward into your new chapter.