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Difference Between Legal Separation and Divorce

Difference Between Legal Separation and Divorce

One of the primary areas of confusion in the divorce process involves the difference between legal separation and divorce. The confusion between these two concepts is understandable given that legal separation and divorce often overlap as couples normally undergo a legal separation prior to formally beginning the process of divorcing. Even though legal separation and divorce often overlap each other, there are significant differences between the two.

Legal separation vs. divorce

A divorce is a legal process of dissolving a marriage. When seeking a divorce, a couple must present a “legal reason” grounds for the divorce. Some states require a party to show that the other spouse is at fault due to some occurrence such as impotence, adultery, desertion, habitual intoxication; cruel treatment, incurable mental illness or habitual drug addiction. Most states also allow a couple to allege what is known as a no-fault grounds for divorce in which the couple agrees that the marriage is irretrievably broken and cannot be salvaged.

A legal separation on the other hand is a formal arrangement in which a couple decides to stop living as a couple, although they are still legally married.In some cases, married couples legally separate without the intention of ever being divorced. Often this is done due to religious or cultural norms that prohibit married couples from divorcing. Therefore couples can use a legal separation as a proxy divorce. It is also used in some cases as a “cooling off period” so that a couple may try to work out their differences before committing to a divorce. Lastly, in some states, legal separation for a certain period is required by law before a couple can proceed with a divorce case. Therefore a couple or individual spouse who is committed to divorcing.

Asset and custody division in legal separation and divorce

Under a legal separation, a court will oversee how their financial affairs will be divided during the period of separation, such as bank accounts and other marital assets, assign obligations regarding child custody, support, and maintenance.  In some cases, a legal separation is not contested, and all issues are resolved through a separation agreement that outlines the rights and obligations of each spouse during the separation.

In legally ending a marriage, a divorce court rules on the financial  and custodial issues. Before the divorce becomes final, issues such as dividing the couple’s assets and debt and issues related to custody and visitation are decided by the court.

An experienced divorce attorney can assist you when contemplating legal separation versus a divorce. In this case, it is important to find counsel who can explain whether legal separation is required for a divorce or if it is advisable to legally separate over the long term.


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