Legal separation and divorce offer two alternatives for married couples who wish to separate long term or permanently. Legal separation and divorce can look quite similar from an outside perspective, but there are differences in the filing process and the finality of each option. Married couples considering parting ways can benefit from reviewing the differences between these two options to determine which option is best for their situation.
A divorce is a complete dissolution of direct family ties between spouses. In divorce proceedings, spouses can agree upon the division of property, child-custody rights and financial support responsibilities, or they can enter into a court proceeding in which a judge rules on these challenging issues. A divorce grants each spouse the right to marry someone else, and to date other people without questions of infidelity. Contrast this with a legal separation, in which dating someone else can add complications to future divorce proceedings.
A legal separation is a way to formalize a marriage separation without the finality of a divorce. In a legal separation, couples can agree upon provisions for child support, spousal support and the division of property. Separated couples often live at different residences, and their lives can be difficult to distinguish from divorced individuals. The main difference between the two is the fact that legal separations can be reversed through a relatively simple process. This has the benefit of allowing spouses to begin to move on with their lives before taking the final step of divorce. Legally separated spouses can have the benefit of continuing family health insurance plans and tax benefits for married tax filers, as well.
Legal Separation Process
The process for legal separation, like divorce, varies slightly among states, but there are similarities across the board. Married couples seeking a legal separation must file a signed petition in county court. If both parties sign the petition, they must then submit additional forms to set forth agreed-upon provisions for child support, financial support and the splitting up of jointly owned property. If only one party wishes to enter into a legal separation, that spouse can submit a petition himself, present the other spouse with notice of intent to legally separate and enter into a court proceeding similar to the divorce process.
After submitting a petition for dissolution of marriage – called by different names in different states – the filing spouse must serve notice to the other spouse. The served spouse can sign a voluntary appearance document to agree to cooperate with the divorce proceedings, or he can file an answer stating the desire to continue the marriage. From this point, divorce proceedings resemble other civil trials, moving from an initial hearing, through the discovery process and eventually to a bench trial if an agreement cannot be reached through negotiation, expert counsel or neutral evaluation. Some states impose a mandatory waiting period before a final divorce decree is granted, and the waiting periods vary widely among states. North Carolina imposes a 30-day waiting period, for example, while New York requires 1 year.
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