Divorce and legal separation have similar effects in many ways. Both a divorce and a legal separation legally create a space between you and your spouse. You live separately. Your finances are separated. Child custody, child support, division of marital assets and debts, and spousal support (called alimony if you divorce) are all ordered by the court. The important difference between a divorce and a legal separation is that when you divorce, your marriage is formally ended. You are no longer married to each other. You are free to remarry. You live your life moving forward as a single person. When you get a legal separation, however, you remain legally married to each other. You must continue to mark that you are married on forms. You cannot remarry. You still have the right to inherit from each other.
A child born to a married woman is legally the child of the other spouse unless proven otherwise. Choosing between a legal separation and a divorce is often a matter of personal preference. Some people have religious or personal beliefs that do not allow divorce, so a legal separation allows them to remain married while being able to live completely separate lives. A legal separation continues your relationship at least to some extent, so you remain connected to each other. If you get a legal separation, you are still entitled to certain benefits, such as Social Security and pensions that provide payments to surviving spouses. A legal separation can be a stopping point on the way to divorce. It allows a couple to resolve all the important issues (custody and financial issues) in their lives while keeping the marriage intact and determining what they really want. A legal separation is reversible. If you get divorced, there is no going back. Legal separations may also be easier for your children, because you remain married and it does not sound as devastating and final as a divorce. In some states, a separation is required before you can get a divorce under certain grounds. Often a waiting period of six months or one year during which you live separate and apart is necessary before you can get a divorce. In other states, a legal separation can become the grounds for a divorce. You resolve all of the issues when you create your separation agreement, live under it for a period of time and that agreement then converts to a divorce decree after a period of time.
There are several types of separations. A trial separation is an informal separation during which you live apart and see if a separation or divorce is ultimately what you want. Many couples do this when they are having marital problems. Anyone can separate at any time for any length of time and no court involvement is needed. If you and your spouse are living in two different residences, you are separated. A legal separation occurs when the court formally declares you are separated. Not all states offer legal separation as an option, so it is important to determine your state’s laws. If legal separation is permitted in your state, you can get a legal separation by submitting a separation agreement. You can also obtain one by filing for a separation just as you would file for a divorce. You can even have a trial of you don’t agree. Divorce and legal separation are both valid and useful options to consider when you are dealing with a failing marriage. Take the time to consider which feels more comfortable to you. Some couples end their relationship because of un-resolvable differences or conflicts that can’t be accepted. Others decide to get separated because they simply need time and space to think. Reconciliation is more complicated and sensitive than getting together in the first place. Rebuilding a marriage or relationship involves getting over a broken heart or disappointment in your ex-husband, which requires forgiveness and hard work. If you know your reconciliation will be rocky, consider seeing a counselor who specializes in getting back together after a divorce or separation. At this point, it’s important to take a deep breath and put your emotions aside. You may feel guilt, love, fear, hope, dread, confusion, anger, frustration, concern – you may feel like you’re drowning in an ocean of emotion! But your emotions shouldn’t make the “getting back together after separation” decision for you.
Here are a few signs you should not reconcile after a separation:
• Your husband isn’t giving you time to think
• He is desperately trying to get back together
• He’s pushing you to move back in with him right away
• He’s jumping from one relationship to another
• External parties (in-laws, parents, siblings, friends, colleagues, etc) are pressuring you
• You’re getting back together out of desperation, guilt, or other unhealthy reasons
• You’re not being true to you if you get back together with your husband
• Your gut instincts are telling you not to reconcile with your husband
• You feel better and happier without your husband in the house
• You feel emotionally manipulated or controlled by him
• You like your life the way it is, without your ex-husband
Point of a Separation
There are times when a relationship is burdened by things other than the bond or relationship in and of its self. These could include financial stresses, interference from in-laws or relatives, poor communication or even a lack of space! Alternatively, there may be times when even as adults we need a time out to pull back, take stock and see where we are going wrong so we can work on it. In such instances, a marriage may well be salvable. Separation is meant to give the couple in question the space they need to really determine what they want. If you feel that there is a chance that you and your partner may reconcile and reconnect, that’s brilliant. Staying positive is always a good thing. At the same time, you don’t want to damage the situation further.
Respect the Space
The first thing you need to do is respect the space. If you and your partner have separated it is for a reason. Reductively speaking; because you both need the time apart! Respect this and the space that you have agreed to take. Do this for both yourself and the other involved. Do not try digging your way back into your partner’s life prematurely. This will likely only cause more quarrels and increase the rift between you too. Instead, respect the space agreed to, give them time and take the time you need. When it is time to reconcile you will.
Remain Open to Communication
There may be times when your partner wishes to communicate or connect with you over matters of import. This could be relating to your children, shared payments and even possible reconciliation. In any case, do not punish or push away your partner by closing off completely. Remain open to communication and if your partner asks to connect with you on a bad day, politely excuse yourself and reschedule. Keeping those lines of communication open is important.
It would not be fair if your partner puts down conditions for the separation and you do not do the same. In many cases, it is not uncommon for one partner to oblige to the others wishes and needs in a lopsided manner. Some examples include managing expenses for your partner even though they are effectively doing their own thing or being constantly emotionally available to them even though they aren’t to you. Don’t give more than you need to and respect yourself with the same devotion that you have respected your partner’s wishes. This will help you both.
Don’t Jump into another Relationship
If you’ve separated from your partner with reconciliation being one of the possibilities, you want to take the time you’ve got to sort yourself out. Jumping into another relationship is probably the last thing you need. Not only will this confuse matters by adding another element into your dilemma, it won’t send the right message if reconciliation is indeed on the table! Hold up on dating again until you’re dead sure your previous marriage has dissolved completely.
The Benefits of Legal Separation Over Divorce
Choosing between a legal separation and a divorce is often a matter of personal preference. Some people have religious or personal beliefs that do not allow divorce, so a separation allows them to remain married while being able to live completely separate lives. A legal separation continues your relationship at least to some extent, so you remain connected to each other. If you get a legal separation, you will still be entitled to certain benefits including social security and pensions that provide payments to surviving spouses. If you get divorced, that decision is final. Legal separations also tend to be on children, because you remain married and it does not sound as devastating and final as a divorce.
Procedure for Filing for Legal Separation
The procedure for filing for separation is basically the same as filing for divorce. In order for your legal separation to go through, you will need to petition the court that you wish to separate. You will need to prepare a summons that will be served to your spouse to officially notify them that you have initiated the legal proceedings for separation. The forms you need to begin a legal separation can generally be found on your state or county’s court website. Most of what you need can be found online, but if you need additional help your local court office will typically have a self-help center where you can pick up the forms in person and ask any questions you might have. There are also a number of online companies that will provide all the forms you need for a small fee. Certain states may require additional forms, but generally the requirements will be the same as any divorce proceeding. A judge is generally unable to award you anything that you have not specifically asked for in the original petition. It is important to thoroughly research and prepare your petition and to be sure you have covered everything that you are asking for in the legal separation agreement. The whole process will go much smoother if you and your spouse agree upfront with what you would like to happen in the areas of child custody, visitation and child and spousal support, as well as what should happen to the marital home, assets, and debt liabilities. In general, a judge will not undo any arrangements that are supported by both parties, with the exception of those that are not in the best interest of the children or are blatantly unfair.
Different Types of Separation
If you and your spouse need a break from the relationship, you may choose to live apart while you decide between divorce or reconciliation. While you’re separated, the same legal rules apply as when you are married, in terms of ownership of property. For example, money you earn and property you buy are likely to still be considered jointly owned by you and your spouse, depending on your state’s rules about property ownership. If you and your spouse are hoping to reconcile, it’s a good idea to write an informal agreement about some issues that will surely come up. For example, you will need to decide whether or not you will continue to share a joint bank account or credit cards and how you’ll budget your spending, which of you will stay in the family home, how expenses will be shared, and the like. If you have kids, you’ll need to decide how and when each of you will spend time with them. If you both decide there’s no going back, your trial separation turns into a permanent one.
When you live apart from your spouse without intending to reconcile but you are not divorced, you are considered permanently separated. In some states, living apart can change property rights between spouses if you don’t intend to get back together, then assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns. Because it can significantly affect how your property and money are divided, the date of permanent separation is sometimes hotly contested in a divorce.
In some (not all) states, you can get a legal separation by filing a request in family court. Being legally separated is a different legal status from being divorced or married—you’re no longer married, but you’re not divorced either, and you can’t remarry. But the court’s order granting the legal separation includes orders about property division, alimony, and child custody and support, just as a divorce would.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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