Most states recognize three ways to legally alter a marital relationship -- separation, divorce and annulment. Among these, separation and divorce are the most commonly used. A legal separation involves many of the same legal complexities that divorce does. Divorce and legal separation are also available for domestic partnerships and civil unions in states that recognize these relationships. Always check your state laws for requirements for obtaining a legal separation.
Separation vs. Legal Separation
Simply moving into separate residences does not trigger a legal separation. Nevertheless, some of the same issues arise. Even without a legal separation, you may petition a family court to rule on issues such as alimony, child support and child custody. To obtain a legal separation, you must file a petition with the family court. The couple must sign a separation agreement that deals with issues such as alimony, child support, child custody and property division, and the court will issue an order binding both spouses to the terms of the agreement. Assets obtained by either spouse after the separation are not considered marital property under state law. If one spouse refuses to agree to a legal separation, the only options are informal separation, reconciliation or divorce.
In divorce proceedings the court will rule on alimony, child support, child custody and property division. The difference between divorce and legal separation is the finality of divorce. Once a couple is divorced, either spouse is free to remarry, and a return to the previous relationship will require remarriage. Divorce also entails the loss of certain contractual and legal benefits. For example, the spouse of an employee covered by a family health insurance plan will eventually lose the option to continue benefits under the plan, and neither spouse will be entitled to joint filing status with the IRS or state taxation authorities.
Choosing Legal Separation
A couple may choose separation over divorce because they have not made a final decision to divorce, or they may seek separation while divorce proceedings are pending. Alternatively, one spouse may be unwilling to agree to divorce, and the other spouse may desire divorce but wish to avoid litigation. Some couples choose separation because of religious values that forbid divorce. Others prefer to retain the legal benefits of marriage -- some employer health plans cover legally separated spouses, for example, and the IRS allows legally separated couples to file a joint tax return.
Ending a Legal Separation
To end a legal separation, the couples must sign an agreement stating that they are reconciled and wish to return to their previous arrangements. Once this agreement is filed with the family court, legal separation ends. Assets obtained by either spouse after the separation ends are considered marital property under state law.
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