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Should You Separate First Before Divorce?

Should You Separate First Before Divorce

When you use the term “separation” concerning marriage, it can mean many different things. Separation can mean that you and your spouse agree your marriage is in trouble, but isn’t over, so you’re taking some time to reevaluate the relationship. Or, you and your spouse have decided that you no longer want to be married, and you are either living separate and apart or (for financial or other reasons), you are still living in the same house, but merely as roommates. Finally, a legal separation is available in some states, and while you are still technically married, it’s similar to a divorce in that a judge can divide your property, determine child custody and support, and set alimony, if appropriate.

Trial Separation

If you and your spouse are having marital troubles, but you’re not ready to end your relationship, you can agree to a trial separation. Trial separations are voluntary and don’t require court filings, but if the trial separation is going to go on for more than a month or so, spouses should agree on the terms of the separation, including the timeframe, how to handle finances (such as, mortgage or rent, utility bills, and credit cards), child custody and support, and any other important items.

Permanent Separation

If you and your spouse decide to end your relationship without asking the court for a divorce, you’re permanently separated. Spouses can decide to separate on their own—typically by living apart and separating their finances. It’s important to understand that in some states, living separate and apart for a period of time may change the way the court looks at each spouse’s property rights, should they divorce later. Typically, once you agree to separate, neither spouse is responsible for the other’s debts nor can they claim a right to the other’s income, but in the end, this depends on your state’s laws. A permanent separation usually entails the spouses entering into a Property Settlement Agreement or Separation Agreement. This method owes its popularity to the fact that you don’t need court involvement to attain your goals. It’s a voluntary process, and most couples can resolve their differences through negotiation, often with the aid of attorneys or a qualified family law mediator. Once the spouses resolve all of their issues—such as property, child-related matters, and alimony; they should review and sign a final agreement. If one of the spouses violates any of the agreement’s terms, the other spouse can go to family court and ask a judge to enforce the agreement. A formal separation agreement doesn’t end the marriage, so neither spouse can remarry.

Legal Separation

Some states allow spouses to apply directly to the court for a legal separation. You would first file a written petition (sometimes called a complaint) for separation with your local court. The process then moves forward much the same as a divorce. The couples will have to agree (or ask a judge to decide) on all marriage-related issues, like property division, alimony, and child custody and suppose. Once you have resolved everything you will enter into a formal settlement agreement, which will be provided to the court. If everything looks appropriate, the court will issue orders and declare the couple legally separated. Note that you can separate, either permanently or temporarily, without a court order or a written agreement. However, oral agreements are typically difficult to prove and enforce.

The biggest difference between divorce and legal separation is that a divorce terminates a marriage, while a separation doesn’t. (For purposes of this article, the term “divorce” refers to an absolute divorce, sometimes called “a divorce from the bonds of matrimony.”) That said, there are other distinctions between the two, but whether you choose to file for divorce or opt for a legal separation immediately, the issues you’ll address will normally be the same. They include:

• child custody and visitation

• child support

• alimony (also called spousal support or separate maintenance), and

• the division of marital property and debt.

Pros and Cons of Divorce and Separation

If you want to end your marriage, and you don’t believe you’ll be able to negotiate a settlement with your spouse on your own, then filing for divorce is the obvious choice. That’s not to say that you can’t resolve your differences during the divorce process. In fact, judges actively encourage couples to settle their cases outside of court, usually by having you participate in settlement panels and engaging in mediation, if necessary. The downside to filing for divorce without having an agreement in place is that things tend to move at a snail’s pace. It’s not unusual for a contested divorce to take a year or more to conclude. And the longer the case takes, the more you’ll probably pay in legal fees. Additionally, a contested divorce almost always takes a higher emotional toll on all involved, including children. With that in mind, it would appear that attempting to obtain a negotiated settlement agreement before heading to court is a good option. And that’s true in most cases.

If you have an agreement and ultimately decide you want to dissolve the marriage formally, you can file a divorce petition with the court. You’ll present the separation agreement to the judge, who can make it a part of the final judgment of divorce. It’s important to note that there may also be financial consequences to your divorce or separation choice. For example, if a couple chooses to separate but not get divorced for at least ten years, one spouse may then be entitled to collect Social Security benefits based on the other spouse’s work record. Additionally, your choice of which avenue to pursue can affect important issues, such as the ability to remain on a spouse’s health plan, filing a joint tax return, and what property should be divided (as well as the valuation of that property). The choice between divorce and separation can be complicated. Keep in mind that divorce laws may differ from state to state and are always subject to change. So it’s important that you consult with an experienced divorce lawyer to make an informed decision as to how you want to proceed.

First things you need to make sure you meet your state’s residency requirements before you file your petition (formal written request) for divorce. If you don’t, you won’t be able to start the divorce process. Each state sets its own laws regarding residency. The main factor in residency requirement laws is the period of time you’ve lived within the state where you plan to get divorced. Some states will let you file for divorce without a waiting period, if you currently live in the state. Others may require you to be a resident for anywhere up to a year before you can proceed with a divorce.

Grounds for Divorce

Divorce grounds are the legal reasons on which you’re basing your request that the court end your marriage. Grounds fall into two categories: fault-based and no-fault.

Fault-based grounds are those that require you to prove that your spouse did something wrong, which caused the divorce. Some typical grounds in this category are adultery, extreme cruelty (physical or mental), and desertion. Today, there aren’t many benefits to filing for a fault-based divorce. However, if your state views fault as a factor in determining alimony or division of marital property, it’s something to consider.

No-fault divorce is primarily based on “irreconcilable differences” or the “irretrievable breakdown of the marriage.” In short, these basically mean that you and your spouse can’t get along anymore, and there’s no reasonable prospect that you’ll reconcile. No-fault has become the avenue of choice in most divorces. There are various reasons for this. Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. This is a big benefit, especially if there are children involved. Also, when you don’t have to fight about fault, the divorce may move more quickly. And, less arguing almost always translates into lower legal fees.

Child Custody and Parenting Time (also known as Visitation)

Custody is frequently a hotbed issue in a divorce. But it’s important to note that custody isn’t the all-or-nothing proposition many people think it is. In deciding custody and parenting time issues, the law requires judges to think in terms of “the best interests of the child.” To the degree possible, that usually means having both parents actively involved in the child’s life. In light of this, “joint legal custody” is often the ideal outcome of a custody case. In this scenario, both parents have a say in the most important decisions in a child’s life, such as education, religious upbringing, and non-emergency medical treatment. “Sole legal custody” means only one parent is the decision-maker, but that’s much more the exception than the rule today. Joint legal custody doesn’t necessarily translate into “joint physical custody,” where a child lives with each parent anywhere from a few days a week to literally six months a year. For any number of reasons, joint physical custody may not be feasible or advisable. In that case, a court will award physical custody to one parent (“sole physical custody”), but normally provide the other parent with a parenting time schedule. A typical parenting schedule will have a parent spending time with the child one or two evenings a week, and every other weekend, perhaps with extended time during the summer. But judges will look at parenting time on a case-by-case basis, and try to tailor a plan that best suits both parents’ schedules.

Divorce and Child Support

Both parents are responsible for financially supporting their children. All states utilize child support guidelines to calculate how much money a parent must contribute. The amount of support owed is primarily based on a parent’s income, as well as the amount of time the parent will be spending with the child. Child support will usually also encompass other elements, such as a child’s medical needs (like health insurance and medical bills not covered by insurance).

Alimony in a Divorce

The laws regarding alimony, which is also known as “spousal support” or “maintenance,” have evolved over the years. The current trend is away from lifetime or permanent alimony, which is now typically reserved only for long-term marriages; generally considered to be anywhere from 10 to 20 or more years, depending on your state. In the current divorce environment, you’re more apt to see a court award alimony for a limited duration. For example, one type of limited spousal support is called “rehabilitative” alimony. Judges will award this for a period of time they believe will allow a spouse to viably enter the workforce, or perhaps learn certain skills that will make the spouse more employable. The object is to have the spouse become self-sufficient. Another type of short-term spousal support is “reimbursement” alimony, often awarded in short marriages where one spouse contributed to the other’s pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the effort and costs they expended in furthering the other spouse’s education.

Some common factors a court considers when awarding alimony are:

• a spouse’s actual need, and the other spouse’s ability to pay

• the length of the marriage

• each spouse’s age and health (both physical and emotional)

• each spouse’s earning capacity and level of education

• parental responsibilities for the children

• the division of marital property between the spouses, and

• income available to either spouse through investment of that spouse’s assets.

Distribution of Property in a Divorce

In most divorces, couples will have to divide property and debts. The general rule is that family courts will divide a couple’s marital property, meaning property they acquired during the marriage. This would include assets such as real estate, bank accounts, and so forth. How a court goes about doing this depends on whether you live in an “equitable distribution” state or a “community property” state. Most states follow the principle of equitable distribution. This means that the court will divide the marital property between you and your spouse based on the facts of your case. Whatever the judge feels is fair in your particular set of circumstances will determine how the judge distributes the property—it’s not guaranteed that each spouse will get an equal amount. In a community property state, the court will divide all marital assets on a 50-50 basis, unless there is some reason to deviate from this standard rule. In both equitable distribution states and community property states, you usually get to keep any property that you own separately. Separate property generally includes any assets you owned before the marriage and some types of property you may have acquired during the marriage, such as gifts and inheritances. If something is confirmed as “separate property,” it will remain exclusively yours and won’t be divided between you and your spouse during the divorce. But note that if you commingled separate property with joint (or community) property during the marriage, in all likelihood that separate property will lose its protected status, and will be subject to division during the divorce. To try and avoid this result, keep your separate property in an individual account and/or keep all records of transactions involving your separate assets.

How Does Divorce Affect a Will?

Important external events—for example, divorce, a beneficiary’s death, or the sale of property—may significantly affect how property is distributed under a will. One big (and common) event is divorce. If someone wrote a will, and later got divorced but didn’t make a new will, it can drastically change the person’s estate plan in ways that may not have been anticipated.

In most states, if someone gets divorced after making a will, any gifts that they will makes to the former spouse are automatically revoked. The property passes as though the former spouse had died before the will-maker. So if the will names an alternate (contingent) beneficiary for that gift, that person inherits. If no alternate beneficiary is named, but the will names a “residuary beneficiary,” then that beneficiary inherits. If the will doesn’t name a residuary beneficiary, the property passes under state law, as if there were no will, to the closest surviving relatives.

For example, say that while Maria and Ernest are married, they make simple wills, leaving all their property to each other and naming their young daughter as the alternate beneficiary. Later, they divorce. The provisions in their wills leaving property to each other are void; if one dies before making a new will, everything will go to their daughter.

In some states, gifts to relatives of the former spouse are also revoked by divorce. If your state has such a law and, for example, a will leaves property to a former spouse’s child, divorce would revoke the gift to the child. If a gift to a former spouse is voided by divorce, the rest of the will is not affected; all the terms are still valid. Divorce usually also revokes the appointment of a former spouse to serve as executor of the will or trustee of a trust. The alternate executor, if one was named in the will, would serve instead. If the will didn’t name an alternate executor, the probate court would appoint someone, following the preferences set out in state law.

If the death occurred while the couple was seeking a divorce but still married, in most states the gift to the soon-to-be-former spouse would still be valid—even though that’s probably not what the deceased person would have wanted. If the couple were permanently separated, however, that might be enough to revoke the will. And if the divorce goes through but the former spouses have second thoughts and remarry each other, the old will is back in force. May sure you contact an experienced attorney before you file for either separation or divorce in your state.

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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!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Should You Separate First Before Divorce