Separation and Divorce Are Not the Same

Aug 8, 2012 by

A separation is not a divorce. It may be a step along the path to getting a divorce, but it’s important to remember that the two are not equivalent. Even couples that are legally separated are still married in the eyes of the law. There are several kinds of separations, the most formal of which is a legal separation – a court-approved agreement to live apart.

Types of Separation

There are four main types of separations: trial, living apart, permanent, and legal. In a trial separation, spouses live apart as a test to determine if they want to permanently separate. This is usually not a legally-codified form of separation. When living apart, spouses no longer cohabit. Some states require spouses to live apart for a set period of time before they may seek a no-fault divorce. During this time, some states see assets received and debt incurred as separate, while others see it as joint until a divorce is filed. This asset situation varies by state. A permanent separation is agreed to when spouses have decided that reconciliation is impossible. It is usually not legally-recognized, though the date of separation may become important for deciding asset distribution during divorce proceedings. The final type of separation is the legal separation.

Legal Separation

A legal separation is a court-backed declaration that governs the terms of spouses living apart. The separation is outlined by a court order or separation agreement. The separation agreement is a legal document approved by both spouses and by the court. It sets out the terms of the separation with respect to issues of spousal support, custody of minor children, visitation, and so on. Couples that are legally separated can’t remarry and they no longer accumulate communal property. However, since the spouses remain legally married, they usually retain their spouse’s health benefits and other such benefits during this separation. Some states treat new debt as individual, while other states treat it as communal until legal divorce. And while the separation agreement addresses all the same issues of a divorce agreement, it does not grant a true divorce. If a couple decides to divorce after legally separating the court often uses their separation agreement in divorce proceedings, though its terms can be modified.

A separation – even a legal one – is not a divorce. While it may address all the same issues as does a divorce, spouses are still legally married. And since the recognition of rights and responsibilities during a separation varies by jurisdiction, couples should research their state’s policies before making any decisions.

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