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Deciding that a marriage isn’t working is difficult. Often couples will decide to separate for a period of time. A break can give them time to think about whether they actually want a divorce or want to try and make their marriage work. A legal separation is different from just living apart for awhile.
How Legal Separations Work
When a couple decides to legally separate, they must go to court. In some states, the request is filed in family court. An attorney will prepare the legal separation agreement. The agreement will include the issues that would be addressed in a divorce decree.
The separation agreement includes how the property will be divided, who will be responsible for debts incurred by the couple, child support and custody (if there are children from the marriage), visitation, and spousal support.
Advantages of Legal Separations
There are advantages to legal separations such as protecting the interests of both parties until the decision is made to reconcile or divorce. In the event the couple decides to divorce, the issues that would need to be dealt with are already settled.
If the couple is not sure they want a divorce, a legal separation will allow them to stay married so health benefits stay in place. It is generally less stressful for children when their parents are living apart rather than living in the same home and not getting along. Living apart can be beneficial for giving each other the space needed to think about what they really want to do.
Sometimes a couple may choose legal separation rather than divorce due to religious beliefs. Their religion may prohibit divorce. Couples have lived separately for many years and find that the arrangement works well for them. Since they are still legally married, it may help them when it comes to filing income taxes.
Another consideration is that when the time comes, in order for one spouse to be eligible for social security benefits of the other, they must have been married for a specific period of time. If one spouse would get more in social security benefits, the other spouse would receive more by drawing benefits from the higher earning spouse by staying married for the required years. The same is true for military families.
Legal separation can also protect a spouse’s right to property in the event that one or the other would die. If they are divorced, they would not have a right to the property unless it was specified in a will or other legal arrangement.
Disadvantages of Legal Separations
When someone is unsure of whether they want a divorce, since a legal separation involves filing legal paperwork, it may be necessary to return to court to have the agreement annulled. Depending on the laws of the state where the couple resides, it may be easier just to get back together, thus negating the separation.
When deciding to separate legally, if the couple cannot agree on the separation of their assets or custody of children, a judge will decide these issues. This can be as stressful and expensive as a divorce. Due to this stress and the cost of a legal separation, it could cause the couple to go through with the divorce when they weren’t really sure that is what they wanted in the beginning.
Often couples decide on an informal separation, rather than going to court. Another reason for an informal separation is it does not seem as permanent. For those who are not sure if a divorce is really what they want, it may be easier to live apart without legally filing for separation until they decide what they want.
Sometimes when couples spend a significant amount of time apart, they meet someone else. If one or the other should do this, they are not free to marry under a legal separation. They would need to go through the divorce process.
In the event that a medical decision would need to be made for one of the spouses due to an accident or serious illness, when a couple is legally separated, they are still the next of kin. If they are divorced, they are not considered as such and cannot make these decisions. A legal separation can be undone. A divorce cannot. The only option in divorce is remarriage.
Being legally separated is confusing. This is why some couples choose a trial separation instead of going through the legal process. It may give them time to decide if they want a legal separation or a divorce. It can also help by providing both spouses a chance to explore their feelings without pressure from the other.
If they can agree on the handling of bills, custody, and support, this may be an option. When choosing a trial separation it is still a good idea to create an informal agreement in writing regarding legal aspects. Will the couple continue to have joint bank accounts or credit cards? Will they pay the same bills they have been paying? If children are involved, which parent will they live with, and who is responsible for supporting them?
There are advantages and disadvantages to legal separation. If the couple has feelings for each other, spending some time apart may be a solution. If they decide it is best to live apart, a legal separation can be beneficial for both until they make a decision to divorce.
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