What are the Differences Between Divorce, Legal Separation, and Just Being Separated?

Screen Shot 2013-10-03 at 7.53.42 AMA legal term for divorce is “Dissolution of Marriage,” meaning that once the marriage is dissolved, it ceases to exist.  Once a couple divorces, they are each single and unmarried. They are then free to come and go as they wish, marry someone else, or not, and have control of their own adult lives.

Once a marriage is dissolved, the parties no longer have an inferred right to each other’s property.  If a couple purchases a house together as husband and wife, they do so with “rights of survivorship” unless they specify otherwise.  This means that if the husband dies while they still own the house, then the whole house belongs to the wife.  However, a divorced couple, even if the parties purchased the house together and continue to cohabitate in it; are presumed to own as tenants-in-common unless they specify otherwise.  So, if the ex-husband dies while they still own the house, his half goes to his heirs, and the ex-wife is only entitled to her share of the house, usually one half.  This might mean that the ex-husband’s heirs can request a court to force her out of the house.

Until a couple is legally divorced by a court order, they are still deemed as married within the eyes of the law.  Rights which attach at marriage, such as the above presumption of survivorship, automatic rights to an inheritance, vesting rights to social security payments, and others of that sort continue to apply.  Separated people who marry someone else are committing the crime of bigamy.  It does not matter if a couple is separated within their own house or across continents until the marriage is dissolved they are married in the eyes of the law.

The idea of a “Legal Separation” serves as a hybrid between the two.  In the states that allow for legal separation, it is a way of creating some ground rules between the couple as to how they will live separately from each other.  The couple typically goes through a similar proceeding in the court system of filing papers and putting the court on notice of their intent to legally separate.  In states where a couple must show grounds for divorce they may also be asked to show grounds for the separation.  If there is a statutory waiting period for divorce, it is usually the same (or close) for legal separation.  At the end of the waiting period the couple goes to court and a judge enters orders which will serve as the rules for the legal separation.  Such orders could include spousal support (akin to alimony), custody, child support and visitation schedules, and a distribution of assets and debts.

The Legal Separation thereby provides some of the benefit of divorce, such as the structure of a ruling on how things will go, as opposed to the nebulous quality of two people just separating and seeing where things will end up.  At the same time, it preserves some of the implied benefits of marriage, such as estate and property matters.

A Legal Separation may end one of three ways:  the death of either party, converting the separation into a divorce, or reconciliation.  Converting a legal separation into a divorce tends to be less complicated than starting a divorce from the beginning, since you already have record with the court.  Reconciling after Legal Separation is usually as simple as filing a form with the court, and the marriage resumes as if uninterrupted.  If either of the parties passes away during a Legal Separation (or a physical separation) the surviving partner is presumed to have all of the same rights as any other spouse would have in that situation.

What We Love:  Many states’ marital laws are designed to help individuals find the solutions that work best for them.  Sometimes a separation is all people need.

– Sharon Oberst DeFala

Published by Sharon Oberst DeFala

Sharon Oberst DeFala has practiced low-impact safe divorce since 1992.

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