What is Legal Separation
Written by Michelle N. Ogborne

What is Legal Separation and What are the Different Types?

A legal separation is not the same as getting divorced. Separation means that you are living away from the other party, but you are still legally married pending you getting a judgment of divorce from the court. Nevertheless, typically a separation does impact the financial responsibilities between each of you prior to the divorce being finalized. There are 3 different kinds of separation. In many states, only one, legal separation, modifies your legal standing, however, all 3 of them have the possibility to impact your legal rights.

According to Dictionary.com the definition of separation is “cessation of conjugal cohabitation, as by mutual consent or judicial separation.”

Trial Separation

If both of you need a break from the marriage, you can decide to live away from each other while you choose between divorce or reconciling. Whereas you’re separated, the same legal regulations apply as when you’re married, in terms of property ownership. For instance, money you make and property you purchase are likely to still be considered jointly owned by both of you, subject to your state’s regulations concerning property ownership.

If both of you are hoping for reconciliation, it’s wise to create an informal agreement about some of the matters that will most likely come up. For instance, you’ll need to decide if you will continually share a joint bank account or credit cards and how you will budget your expenditures, who will stay in the marital home, how expenses will be split, etc. If you have children, you’ll need to make a decision about when and how the two of you will individually spend time with them. If each of you decide you’ve reached the point of no return, the trial separation becomes a permanent one.

Permanent Separation

When you live apart from the other party without the intention to reconcile but you aren’t divorced, you are deemed permanently separated. In many states, living apart from each other can alter property rights among spouses—if there is no intention of getting back together, then assets and debts obtained throughout the separation belong just to the spouse who gets them. When you’re permanently separated, you are not responsible for any debts that the other party incurs. Likewise, you’re no longer entitled to any sharing of property or income that the other party obtains or makes. Since it can significantly impact how your property and money are split, the date of permanent separation is occasionally heatedly contested in a divorce. For instance, if your spouse left in a bad mood and spent a month sleeping on a friend’s couch, but you did not talk about getting divorced until the month was over, and neither of you had the intention to divorce prior to that, the date of separation is relatively questionable. If throughout that month your spouse got a big bonus at work, who owns it is also debatable.

If you move out of the marital house and aren’t expecting any long-term reconcilement with your spouse, there could be repercussions to going out or spending the night with each other for the good old days. If you do reconcile briefly, you jeopardize altering the date of separation and become responsible for your spouse’s financial conduct throughout a period when you believed you were responsible just for yourself. Following your separation and you have made straightforward agreements about your shared debts and assets; you don’t have to get divorce straight away. Many people stay married for insurance reasons—and inaction may be a factor, also.

Legal Separation

In many, not all, states, you may acquire a legal separation by filing a petition through the family court system. Being legally separated is an incomparable legal standing from being divorced or married—you’re not married anymore, but you aren’t divorced either, and you’re unable to remarry. However, the court’s order awarding the legal separation includes orders about the division of property, spousal support, and child custody/ support, just as a divorce does.

Couples decide on legal separation rather than divorce for religious reasons, the desire to keep the family together legally for the children’s sake, the need for one party to retain the health insurance benefits that would be lost in a divorce, or basic dislike to divorcing in spite of the desire to live individual lives. Some individuals live very happily in a state of legal separation for a lot of years. (If you are thinking about a legally separating instead of divorcing so you can retain the insurance benefits, go over the insurance plan prior to making the decision. Many deem a legal separation the same as divorces for the purpose of ending health benefits.)

Legal Separation vs. Divorce: Differences

There are primary differences between legal separations and divorces. The most simple and clear difference is that you stay married throughout a legal separation and in a divorce, your marriage is terminated. Other differences comprise of:

  • Health care benefits/ other benefits: Legal separation permits for the keeping of health care and other benefits including specific social security benefits that end with a divorce.
  • Marital standing: Legal separation permits you to keep your marital standing, meaning that you’re unable to remarry; after you are divorced, you are able to remarry.
  • Making decisions: Spouses are deemed next of kin and are permitted to keep making medical or financial decisions for the other spouse; divorced couples are not thought of as next of kin.
  • Debts/ liabilities: Spouses can still be responsible for the debt of the other spouse in legal separations, dissimilar to a divorce the debts are dealt with throughout the dissolution process.
  • Property rights: Legal separations keeps each spouse’s legal right to property benefits when the passing away of the other spouse happens, but a divorce eliminates these rights.
  • Remarriage/ reconciliation: Divorces are final; reconciliation is more easy with legal separations. Following a divorce, you would have to get remarried if you want to be legally reunified.

Legal Separation vs. Divorce: Similarities

In divorce proceedings and in legal separation proceedings for, the courts decide on the following:

  • Separation maintenance (legal separations are comparable to spousal maintenance and child support, but is distinguishable from the impact of divorces and is typically attained through a “motion pending litigation”).
  • Child custody
  • Child visitation
  • Division of Property (both legal separations and divorce property division is conditional to the couple’s circumstance and how it’s related to the property)

Do I Need an Attorney for Assistance with Marital Separation?

You might have some important legal questions like “What exactly is marital separation?” or “Will marital separation right for me?”  If that’s your situation, you might want to contact a knowledgeable family lawyer near you. The lawyer will be able to help you with any legal matter you might be facing in regard to your marriage. Additionally, if you are required to make a court appearance, your attorney can represent you throughout the process.

Source:

  1. Emily Doskow, Attorney. “Different Types of Separation: Trial, Permanent, and Legal Separation.Www.divorcenet.com, Nolo, 17 Aug. 2020, www.divorcenet.com/resources/family/types-separation.htm.

Speak with Our Legal Separation Lawyers in Phoenix, Arizona Today

Ogborne Law can help with a legal separation in Arizona. Our legal separation lawyers have many years of experience in drafting separation agreements. Our law office is located at 5020 E Shea Blvd Suite 240, Scottsdale, AZ 85254 inside the Paradise Valley Plaza.

While the legal separation process is not for everyone, it can save you money, stress, and hassle vs getting a litigated divorce. Speak with our legal separation lawyers in Phoenix, AZ to find out if legal separation is right for your family.

If you’re ready to start your consultation with Ogborne Law, visit our Consultation request page.

Contact Ogborne Law today and let us show you how we can help protect your kids and your family.

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