Separation, instead of divorce, is an option that can be pursued by a married couple when their marriage is falling apart. Legal separation is different from a divorce. Being legally separated means spouses can live apart while retaining their marital status.
The same issues addressed in a divorce are also addressed in a legal separation agreement. This can protect the interests of both spouses until a decision is reached on whether to file for a divorce or not. Following legal separation with a divorce means that a court judge will assume that both parties were satisfied with the agreement and will likely carry the agreement over to the divorce settlement. This means it's very important to arrive at a separation agreement you can live with long term.
Difference between Separation and Divorce
The main difference between separation and divorce is that divorce ends the marriage. Spouses return to an unmarried status and are thus are allowed to remarry. Separation lets couples keep their married status while acknowledging that they are no longer living together.
The court order granting legal separation contains the rights and responsibilities of both parties during this period, and also resolves all relevant legal issues regarding the marriage. The couple signs an agreement regarding property or asset distribution, child custody, child visitation, child support, alimony, attorney fees and personal conduct.
Benefits of Separation over Divorce
Legally separated couples are still considered married. This married status actually provides benefits to both parties, and is a good reason for married couples to become separated instead of divorced.
Here are some situations where separation is better than divorce:
- A spouse can retain the benefits of the couple's health care plan, especially if it is under the name of the other party. Getting divorced usually terminates this coverage (depends on the terms of the divorce settlement).
- Some religious beliefs and institutions have conflicting ideas on divorce. Couples who wish to live apart can choose to have a legal separation agreement in order to stay married for the sake of their religion.
- Military spouses gain benefits from the Uniformed Services Former Spouse Protection Act if they remain married for at least 10 years.
- Remaining married for 10 years or more also qualifies couples for certain social security benefits.
- Taxes are must be filed singly after a divorce.
- Separation allows time for both parties to resolve their differences to either resume the marriage, or finally settle on divorce and move on with their lives.
Other issues such as loan or mortgage payments and joint savings and checking accounts can be resolved in the legal separation agreement. An outline of which portion of mortgage payments and maintenance fees of the marital home are to be paid by which spouse can be included. Access to the couple's bank accounts, or the need to close it and open separate accounts, can also be defined.
Legal separation is a good alternative option to consider for married couples who are uncertain about divorce; it should be discussed thoroughly.