Living Apart Prior to Divorce

Aug 8, 2012 by

More couples today are choosing to live apart instead of going through with an actual divorce. The number of people living in some form of separation has increased right along with the weakened economy as many couples find that they cannot really afford to get a divorce when it means selling off real estate, paying off debts and hiring attorneys. Other couples may choose to go through a period of separation in order to sort some things out and perhaps fix whatever is causing their marriage to fall apart. Whatever the reason, more couples today are living apart without getting divorced.

Many people incorrectly assume that because they are living apart they have no further responsibility to the marriage and that separation grants them most of the same rights as a divorce would. However, living apart triggers different rules in different states and an informal separation that is not mandated by the court will usually have zero legal status and for all legal purposes, the couple is still married. There are several different types of separation in marriage, but legal separation is the only type that covers the same issues as a formal divorce and will be legally recognized by the court. The main difference is that a final divorce decree is not granted in a legal separation.

The different types of separation each have their own requirements. The most informal type is simply living apart temporarily and it has no legally binding effect on the distribution of assets and debts, even those accumulated during the separation. If both spouses live in separate homes for a long time without any thought of reconciliation of the marriage, the living apart status can become more formal with some states now requiring a set period of living apart prior to filing an uncontested divorce. A permanent separation is when a couple lives apart permanently without formal recognition of the court.

A true legal separation is when there is no divorce, but the court makes a legal determination on property and support issues. Legal separation is not always available in all jurisdictions and depending upon where you live legal separation may not be recognized, but in most places it is designated by the court, and creates a formal agreement a couple will be legally bound to.
Most legal separations contain a specific period of time for a couple 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 a spouse’s specific duties such as child care, home care, visitation and support. The lack of a divorce decree in a legal separation also means that neither spouse can remarry unless a formal divorce is completed.


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