When a married couple comes to a point in their relationship when they believe some kind of dramatic change is necessary, they have two legal choices between filing for a divorce and filing for a legal separation. While a couple can certainly just separate without taking legal action, the two legal routes more often are prudent in the long run. Whether you are leaving for good, or just for a temporary cooling-off period, it's important to know your rights and your options in divorce and separation, says divorce lawyer and author Nihara Choudhri in her book, "The Complete Guide to Divorce Law."
Divorce
Marriage is a legal contract between two adults that has profound legal and social consequences. When a married couple opts to terminate this legal contract, the courts play a role in protecting the interests of the couple and the community. The state "legalized" the marriage, so the state must also legalize the dissolution of that marriage. The courts conduct divorce proceedings, otherwise known as "dissolutions of marriage," usually with the participation of attorneys, family court judges, actuaries, mediation experts, and for cases in which children are involved, state child welfare agencies.
Legal Separation
The state recognizes that for various reasons, a married couple may need to consider dissolving their marriage contract---but they aren't quite ready to file for divorce. States often provide couples with the alternative of going their separate ways temporarily, without legally ending the marriage. The rules of legal separation are intended to protect the rights of the participants during this "cooling off" or "trial" period, according to "Civil Procedure," a review of American case law compiled by legal scholars Barbara Babcock and Toni Massarso.
Handling of Assets and Obligations in Divorce
In divorce, courts permanently liquidate the assets of the marriage or otherwise divide them between the couple in an equitable manner. Judges award assets, such as homes, cars, bank accounts and pensions, to each individual according to an agreement or court ruling. Courts divide debts, such a credit card bills, between the couple and establish obligations, such as alimony or child support, as well.
Handling of Assets and Obligations in Legal Separation
In legal separation, however, the court only temporarily divides the assets. The court usually establishes fair guidelines that will protect the assets and assure each side some access to the assets, divorce lawyer Choudhri says. For example, they may set aside a home for use by one partner while the other partner temporarily lives elsewhere. However, the partner living away from the home still is legally an owner of the home, still is responsible for payments on a mortgage and may still have permission to visit the property, according to established case law. The court establishes all these rules in the legal separation order.
Reversals
In most states, you cannot reverse a divorce, except through re-marriage. However, you can stop legal separation procedures at any time, and the couple can resume their marriage. Partners who want to reconcile and end their legal separation should only do this with involvement of the court. The partners will need to direct their attorneys to formally petition the court to end the separation ruling, divorce lawyer Choudhri says.
Transition
Under some state laws, couples must complete a required legal separation period before a court will grant a divorce. Exceptions occur, however, such as cases in which domestic violence is a factor. Legal separations can eventually transition into full divorce proceedings. Couples can work out the details of a future divorce and make the divorce stage go more smoothly.
Importance of Legal Separation
Most states prefer that married couples who are no longer living together, or actively participating in an marriage, formalize this situation with a legal separation to prevent potential future legal problems. Couples can face many negative consequences, both financial and personal, because of this self-created legal limbo, divorce lawyer Choudhri says. A spouse who is still living in the marriage-home, for example, can fail to pay the mortgage, throwing the home into foreclosure. The spouse not living in the home will be equally at risk for such a foreclosure action, just as if he were residing there, unless a legal separation agreement offers him some measure of protection.
References
- "The Complete Guide to Divorce Law"; Nihara K. Choudhri; 2004
- "Civil Procedure: Cases and Problems"; Barbara Allen Babcock, Toni Marie Massaro and Norman W. Spaulding; 2006
- DivorceLawInfo.com: Frequently Asked Questions About Marital Separation Agreements
