HomeBusiness‌What's The Difference between Separation and Divorce?

‌What’s The Difference between Separation and Divorce?

Whoever came up with the Till Death Do Us Part marriage vows had some good intentions. Unless an arranged marriage, you get into the institution with pretty good intentions. After all, you loved your partner and did not see your future without them in it.

But alas, the best-laid plans can often go awry. What started as a dream can spiral into a daily nightmare. Living with your partner becomes untenable. Before you know it, you are making trips to the family law lawyer as you plan for a separation or divorce.

A look at a marriage and divorce report shows some interesting insights. Since the 70s, there has been an upward shift in separation and divorce cases. Indeed, the numbers have doubled across the globe.

The report shows that in 1963, only 1.5% would not make it to their fifth year of marriage. By the mid-90s, the figure had reached 11% giving up before year five. But the outlook is not too dire. The likelihood of divorce is decreasing. This is especially true for couples who tied the knot in the 1980s. It will be interesting to see how younger couples fare in marriage.

Now, do you know that moving out of the marital home does not constitute divorce?

Separation vs. Divorce: What Your Family Law Lawyer Will Tell You

As we said, moving out of the marital home does not constitute a divorce. Talk to your family law lawyer to get clarity on the issue. 

This is what your family law attorney will tell you during the consultation.

Defining a Separation

Separation allows the couple to explore living apart from each other. Sometimes space can be a critical factor in attempting reconciliation. For others, it provides enough time to decide to divorce.

Please note that you could have a formal or informal separation. In the former, the court approves the decision with a legal separation agreement. 

The agreement will cover child custody, living arrangements, property division, and finances. It is critical to have suitable legal representation.

Your family law lawyer should have the expertise to handle such cases. They have in their stable child custody lawyers, financial advisors, counselors, etc. These experts can be invaluable in fighting for a good outcome for you.

An informal separation does not involve the courts. Either way, do consult your family divorce lawyer for guidance on how to go about it.

Now here is where it gets interesting. A separation does not always mean separate living conditions. Indeed you can continue to live in the marital home for whatever reason. Some people do it to maintain some semblance of normalcy, especially for the kids’ sake. For others, it could be issues of finances.

Why It Makes Sense to Get a Separation Agreement

In consultation with a family law attorney, they may advise on a legal separation. This allows for the development of a separation agreement. It is a critical document for several reasons, including:-

  • Outlining the reasons for the separation.
  • The date of the separation determines asset accumulation and division within the time.
  • Financial responsibilities like bill payments, child care, and more. Each party will divulge their finances and who pays which bills.
  • Custody agreement for minor children, including where the kids live and visitation schedules.

Understanding Divorce

Divorce is an ugly word that defines the end of a marriage. Unlike a separation, it entails a formal process that requires court approval. Both parties must agree on how to divide property and figure out the children’s future.

So why would you ask for a divorce instead of a separation? The answers are many, including:-

  • Irreconcilable differences where there is no possibility of getting back together
  • Acts of violence against one or both parties. A domestic violence lawyer will tell you how to proceed. And this includes filing an emotional distress lawsuit.
  • When both or either party is sure, they want to end the marriage
  • In the case that you want to enter another legal marriage

The family law lawyer will advise on the state requirements for a divorce. Some states need you to go through a legal separation before you can file for divorce. There may also be residency requirements, such as living in the state for 3 to 12 months.

You may also need to have a legal reason for the filing. These fall into two categories, which are:-

  • At-fault divorce covers abandonment, adultery, physical and emotional abuse, or mental illness.
  • No fault divorce  includes reconcilable differences and a retrievable breakdown in communication.

Exploring the Differences between a Divorce and Separation

At this point, you should have a pretty good idea of the difference between a divorce and separation. We can summarize them as follows:-

End of Marital Status

With a divorce, you are no longer married to your partner. This is unlike a separation, where the law still recognizes that you are in a legal union.

Next of Kin Rights

With a separation, your partner remains the immediate next of kin. In the case of financial and medical decisions, they still have the right to make them on your behalf. The legal dissolution of a marriage releases your partner from being the next of kin.

Right to Property

Divorce removes any property right. You must agree on how to divide what you both own in the legal agreement. Remember the point we made earlier about the date of the separation on the legal agreement? Once the document is in force, any property you get after that does not fall under the marital property.

Benefits, Debts, and Liabilities

With a legal separation, you will keep unemployment insurance, retirement, and pension benefits. The same applies to debts and liabilities. All the benefits go out of the window with a divorce. You will also be responsible for your debts going forward.

Final Thoughts

True, you may love each other. But, there could come an unfortunate time when you can no longer stay together. That necessitates separation or divorce. The former means you are still married and agree to share responsibilities.

Do seek the services of a family law attorney to help navigate the difficult time. The right family law firm will have a full team of experts. These include child custody lawyers, attorneys for elder law, and domestic violence lawyers. You will need all the legal support you can get.


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