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Divorce and Separation Compared


Divorce and separation involve two different states of marital involvement. Voluntary separation occurs generally when two parties agree to go their own separate ways. Sometimes the separation may not occur as a "voluntary" situation, however, usually, the parties involved will ultimately come to realize that a mutual separation agreement as inevitable. Divorce is the final state of marriage dissolution, which often follows a formal separation.

Statutory Requirements

Many states have a requirement that the parties live separately for a statutory amount of time prior to starting divorce proceedings. The legal term of separation involves no cohabitation and residing in different locations at all times during that period. In the literal sense, separate bedrooms in the dwelling would not suffice as a legal separation.

Courts usually distinguish between separation and a desertion situation, in which one party leaves with the intention of not returning. If one party forces another to leave, it is considered "constructive desertion." The court does not penalize a party for leaving if it is necessary for personal or child protection.

Legal Separation Process

Legal separation does not end the marriage, unlike divorce. The court will produce an order outlining the rights and responsibilities of each party while living apart, as part of the legal separation process. While leading separate lives, the couple remains legally married, until issues such as the division of debts, assets, spousal and child support, custody and visitation is addressed and agreed upon.

Divorce Proceedings

During divorce proceedings, the same issues are addressed as during a legal separation agreement. The legal separation is designed to protect the interests of the parties until either they reach an agreement to stay together, or they file for divorce. The separation agreement can set a precedent from which the divorce decree may follow. A judge during divorce proceedings may be likely to assume that the legal separation agreement is satisfactory, since it was sufficient during the separation. This is why it is important to ensure that the legal separation agreement is indeed, workable over the long term, for both parties.

Legal Separation Advantages

Some advantages for obtaining a legal separation over a divorce can include the fact that it can:

  1. Allow for couples to have some time apart, removing them from marriage conflict. This serves as breathing room so that each party may decide if divorce is the best solution.
  2. Be easier to handle financial arrangements and allows for retention of medical benefits which would end once divorce becomes final.
  3. Make religious conflicts more manageable. For example, some religions do not sanction divorce and in a legal separation, it is possible to live separately and still retain marital status.
  4. Ensure that military spousal benefits are retained as part of the Uniformed Services Former Spouse Protection Act.
  5. Allow a spouse to take advantage of some social security benefits, when married for 10 years or more. This can be particularly important for older people who choose to separate.
  6. Be easily converted into a divorce settlement agreement once the decision to move forward to begin divorce proceedings is made.

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