Legal separation vs divorce is a choice you need to make when you have decided to end your marriage. Choosing divorce as an alternative will legally dissolve your marriage, whereas legal separation may preserve all your rights and duties related to marriage. The latter also implies that the couple will live apart while still being married.
Let’s get to the bottom of their similarities and differences:
What Is Divorce?
Divorce is legally termed as the dissolution of a valid marriage. You’d have to seek a judge to approve this decision, as well as come up with a property division agreement and a parenting plan for your children. Due to the similarities between divorce or legal separation, they may cost the same and take the same amount of time to complete.
The benefits of divorce are as follows:
- Not a viable option. If you see no financial benefits from legal separation and are convinced to dissolve your marriage, further it will save your time and money, and you don’t need to repeat the process to obtain a divorce.
- You’ll need to file for divorce if you wish to remarry because you can’t get legally remarried again if you have a previous marriage.
- Divorce may be preferable if you want no contact and permanently stay away from your spouse.
What Is a Legal Separation?
A legal separation is a court agreement that allows the spouses of marriage to live separately. If a competent Court issues a legal separation decree, neither party is required to live with the other.
Both spouses usually move into separate homes and start living separate lives. However, a legal separation is more official. You’d have to obtain a judge to agree to your decision and draft a legal separation agreement.
However, such a ruling does not dissolve the marriage or cut the parties’ marital ties. According to the legislation, a divorce petition can be filed if cohabitation has not resumed for a period of one year (or more) after a judicial separation decision has been issued.
The benefits of legal separation are as follows:
- Legal separation is the next best alternative to divorce.
- If you’re unsure if you want to dissolve your marriage, a formal legal separation might buy you time to think through while also protecting your finances.
- Couples who have religious grounds as a restriction to the divorce may seek a legal separation.
- Legal separated partners may enable one partner to remain covered by health insurance via the employer of the other partner. However, a divorce would end this coverage.
- A formal legal separation permits you and your spouse to continue filing jointly for tax purposes, potentially saving you money.
- Finally, you must have been married for at least ten years to receive social security and military benefits from your spouse’s work. As a result, you have the option of choosing legal separation to cover this time period. Thus, you can choose legal separation to cover this period of time.
What Is the Difference Between Legal Separation and Divorce?
The marriage remains undissolved in a legal separation, whereas the marriage is legally ended in a divorce or dissolution. The issues addressed by the court in a final order or legal separation agreement, on the other hand, are the same issues handled in a divorce or dissolution.
Parenting rights, child support, spousal support, property partition, and debt repayment are all covered. The legal separation outlines rights and obligations that can be enforced in court.
In some cases, the legal separation order can be changed. The property division can be changed if both parties agree; the court cannot change the property division without both parties’ consent.
Orders governing child support and parental rights and duties are subject to alteration as long as the court has jurisdiction. If it is demonstrated that circumstances have changed, spousal support may be modified.
The following are the main points of distinction on divorce versus separation:
- Firstly, judicial separation does not dissolve the marriage; it only absolves the parties from their marital duty of cohabitation, whereas divorce completely dissolves a legal marriage.
- Secondly, from what is stated above, it follows that during judicial separation, each party can inherit from each other as “husband” and “wife.”
- Thirdly, a decree of judicial separation can be subsequently rescinded by the Court, whereas a divorce decree cannot be so rescinded.
- Fourthly, non-resumption of cohabitation by a couple for a year or more after a judicial separation decision has been issued by itself constitutes a good ground for dissolution of the marriage. Thus, there are more differences between divorce and legal separation than similarities.
Before a judge may finalize a divorce, several jurisdictions’ laws require couples to separate. Many states require the couple to live “separately” for a length of time before the court can accept a divorce petition (formal request), while others do not require separation until after the petition is filed.
The court may dismiss your case if you file before you’ve completed the separation conditions. While the divorce is pending in some areas, spouses may be required to separate.
Many state laws requiring separation before divorce have exceptions or apply only to certain types of marriages. For example, in Arizona, a gap period is required only if the couple ends a “covenant marriage.” A separation period is required in Nevada unless the couple is filing a no-fault divorce based on “incompatibility.
What Are the Grounds for Legal Separation?
A legal separation process can be started by filing a lawsuit alleging one or more of the 10 “grounds” or reasons for the split. Incompatibility, adultery, purposeful absence for more than one-year, excessive cruelty, persistent drinking, and egregious negligence of duty are some of the “grounds” that would be cited in a divorce.
One spouse may seek a legal separation only, while the other may pursue a divorce. All the temporary orders and processes available in a divorce case apply in a legal separation case.
Some of the grounds are explained below:
- ADULTERY is when one partner has had voluntary sexual intercourse with someone other than his or her spouse after the marriage has been solemnized. Adultery has long been one of the most common grounds for divorce in all legal systems. Adultery is defined as voluntary sexual intercourse between a married individual and a member of the opposite sex while the marriage is still in existence.
However, attempting to commit adultery does not constitute adultery and cannot be used as the foundation for a judicial separation petition. Direct evidence of adultery is not required, and the nature of the act is such that no such evidence would be reasonable to expect.
As a result, the courts have stated that in such circumstances, circumstantial evidence is all that can be anticipated. As a result, the time and place of adultery do not need to be established.
- CRUELTY, i.e., the other party has treated the petitioner cruelly after the marriage has been solemnized. It’s worth noting that the legal idea of cruelty contains two distinct parts. First, note the alleged ill-treatment and mention the resulting risk or fear of such danger. This fear is that further cohabitation will be damaging or injurious to the party who has been wronged.
Whether an act or a series of acts falls under the legal age definition of cruelty is a matter that can only be answered based on the facts and circumstances of each case. The partners’ culture, age, temperament, style of living, and other pertinent circumstances would all have to be considered.
- DESERTION, i.e., that the other party has abandoned the petitioner for not less than one year before filing the petition.
It should be mentioned that the concept of desertion (in terms of marriage law) is difficult to define. It is true that no judge has ever sought to provide a thorough definition of desertion and that no judge would likely succeed in doing so. On the other hand, desertion is defined in English matrimonial law as “a departure, not from a place, but from a condition of things.”
Finally, desertion differs from other marital offenses (such as adultery or cruelty) in that it does not involve a single act or a sequence of acts that are independent and different from one another. Rather, it is an activity or pattern of behavior that must continue over the statutory period leading up to the filing of the petition. When a period is broken, the broken periods cannot be joined to produce a two-year period.
– Process Involved in Legal Separation
If you decide to be legally separated, you’ll need to figure out plans for child care, support, and bill payment. You and your spouse can negotiate an agreement with the help of a mediator or lawyer. If an informal arrangement is not possible, a lawyer can advise you on your legal choices.
There are specific sorts of court papers that can be submitted if you are not ready to apply for a legal separation or divorce but require the court’s assistance in obtaining child support or alimony (spousal support). You can also get custody and visitation orders from the court without going through a legal separation or divorce.
You must do the filing for separation via petition in your Superior or Family Division Court to obtain a formal legal separation. It is a separate legal product rather than the first step in the divorce process. In fact, legal separation takes as long (on average, 8-10 months) and costs as much as divorce.
Some couples choose legal separation over divorce because of religious or moral views that oppose it. Health insurance coverage is the cause of legal separation in a few circumstances.
Employer-provided health insurance may remain for a spouse even after divorce. However, coverage may be limited (two or three years) and may demand a significant monthly premium to be paid.
The situation is improved in some, but not all, employer’s health insurance policies if you acquire a legal separation. If you divorce, the coverage and fees in these plans vary, but not if you have a legal separation. Get information from your employer’s benefit or human resources department if health insurance is a major concern in your family.
The legal separation agreement or order may later be used as the foundation for a final divorce or dissolution, but the marriage will remain legally intact unless one of the spouses takes additional steps toward divorce or dissolution.
Further, we conclude the following:
- A legal separation permits the parties. to a marriage to live apart, whereas divorce is the legal term for the dissolution of a marriage
- If you’re not sure if you want to dissolve your marriage, a formal legal separation might buy you time to think through while also protecting your finances, and divorce may be preferable if you want no relationship with your spouse, such as the capacity to make medical or financial decisions for one another
- Many state laws requiring separation before divorce have exceptions or apply only to certain types of marriages
- If you decide to separate legally, you’ll need to figure out plans for child care, support, and bill payment. A legal separation can be acquired by filing a lawsuit alleging one or more of the 10 “grounds” or reasons for the split, and all the temporary orders and processes available in a divorce case apply
- Desertion differs from other marital offenses (such as adultery or cruelty) in that it does not involve a single act or a sequence of acts that are independent and different from one another
- Cruelty, desertion, and adultery are some of the grounds for filing against legal separation explained in this article
Through this article, you can now be able to differentiate between divorce and legal separation easily and make an informed decision accordingly.
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