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:
- 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.
- Be easier to handle financial arrangements and allows for retention of medical benefits which would end once divorce becomes final.
- 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.
- Ensure that military spousal benefits are retained as part of the Uniformed Services Former Spouse Protection Act.
- 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.
- Be easily converted into a divorce settlement agreement once the decision to move forward to begin divorce proceedings is made.
