Experiencing marital problems likely leads you to a juncture at which you desire to understand all of your options. Divorce certainly is a course to pursue. You also may be able to take advantage of legal separation if your state permits that type of proceeding. No matter where you live, a separation agreement or contract also is a possibility.
Considerations
A legal separation involves filing a petition or complaint with the court in the county where you or your spouse reside, according to ExpertLaw. A legal separation proceeding is similar to a divorce case, with one difference. A legal separation does not end your marriage; however, the court issues all other types of orders found in divorce proceedings. A separation contract, on the other hand, is an agreement between a husband and wife, through which the spouses resolve issues surrounding their marriage without going to court. A separation contract does not terminate your marriage.
Effects
A legal separation case results in a decree issued by a court. The order commands the parties to follow the decisions of the judge regarding financial matters, custody and related issues. A separation contract is like any other agreement. An agreement does not have the effects of a court order. However, if a spouse fails to comply with the contract, the other party can sue for breach of contract.
Benefits
The benefits of both a legal separation decree and a separation contract include preserving your marriage. A benefit of a legal separation agreement is the ability to resolve issues like child custody and division of property without facing a long court process. On the other hand, with a legal separation decree, you obtain the force of a court order in resolving these issues.
Warning
In contrast to a divorce, which one party may pursue without consent from the other, both you and your spouse need to agree in order to pursue a legal separation. If you desire a legal separation and yet your spouse desires a divorce, a court will not permit a legal separation decree. With a separation contract, because it is a binding agreement, your spouse needs to join you in such an instrument for it to become effective.
Expert Assistance
Pursuing either a legal separation case of a separation contract requires an understanding of complex family and even contract law provisions. Consequently, before moving to pursue one or another of these alternatives, seriously consider engaging the services of a qualified attorney to assist you in one or another of these matters. The American Bar Association provides resources to assist you in finding an attorney in your area that can assist you with these types of legal issues.
Expense
Even with hiring an attorney to draft a separation contract for you, going that route is less expensive than hiring a lawyer to represent you in court. Even if you do not retain counsel in either situation, you avoid the costs associated with court fees by using a separation contract. Additionally, some states do not permit legal separation cases, leaving a separation contract as your only option.
