Unlike divorce, separation in marriage is not a complete break of the legal union of marriage. It's a half-way status that comes with its own set of legal rules. Many people confuse the status with one spouse moving out of the physical home, but this is not the case. There are far more criteria that must be met for a legal separation of marriage to occur.
A legal separation of marriage can occur either through court proceedings or with an informal agreement. In doing so, the married couple can avoid significant legal expenses and gain time to work out differences. The exact definition of separation varies from state to state since divorce is defined by state laws, not federal statutes. Most states at a minimum expect that the spouses are living in different locations during the whole separation period. It's not enough to just be in a different room under the same roof. The formal proceeding also has legal forms that define the terms of a separation. These include which spouse is responsible for what task (i.e., bills, chores). Unlike divorce, the separated spouses are still legally married, but they are able to live independent lives.
Many times, just as in divorce, there will be sticky areas in a legal separation that need clarity and ground rules to follow. These typically involve property and who has control of specific assets. Child custody and related offspring issues also come into play. Finally, if the income situation is one-sided, spousal support (similar in concept to alimony) will probably need to be defined and followed by the providing spouse to the recipient spouse.
A Precursor to Divorce
Most people assume that separation is part of the process of an eventual divorce. Many times a legal separation is in fact performed to quickly establish legal protections for financial reasons. For example, a spouse may be concerned the other partner will trash the credit portfolio and wants to be separated immediately to protect her good credit. Usually, the terms of the separation are a practice run for the terms that will likely be developed in a final divorce proceeding. The judge will look closely at what is already in place between a separated couple and will likely formalize the same terms in a divorce decision.
Legal separation is distinct from divorce in several ways. First, it provides space that may lead back to reconciliation. Too often, disputes are emotional and people just need time to think more logically about their problems. The separation relieves the pressure to determine what each partner really wants going forward. From an employee benefits perspective, the legal separation does not cause a cessation in a spouse's medical benefits from work for the recipient spouse. A divorce, on the other hand, would give grounds for the providing spouse to cut off employment medical benefits immediately. Staying married, but separated, for at least 10 years provides eligibility for military spouses to receive benefits under the Uniformed Services Former Spouse Protection Act and to still be eligible to receive social security benefits as a spouse.
Before taking that last step into legal separation, consider the logistics that will need to be decided. Names will need to be changed or removed from bills specific to a home location for the spouse who is moving out. Taxes, bank accounts, liabilities and miscellaneous financial issues will need to be addressed to avoid argument later. Assets usually need to be divided at separation to avoid suspicion about things disappearing or being sold off. It's not fun work, but it will avoid later problems.
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