What’s the Difference between Divorce and Legal Separation?

30 Sep What’s the Difference between Divorce and Legal Separation?

There are times when a married couple agrees that it is in their best interests to separate yet not actually dissolve their marriage. They can do this through a legal separation. A legal separation is almost the same thing as a divorce, but not exactly the same. A couple who legally separates is still legally married with all the advantages and disadvantages that entails.

What is involved in a legal separation?

In a legal separation in California, the two spouses must agree to separate. If one of them does not agree to legal separation, the only recourse is for the other spouse to petition for a divorce through the civil court. Divorce does not require the agreement of both spouses, at least not in California anyway.

Basically, a legal separation is an agreement drawn up between the two spouses that cover what happens after they separate. The agreement covers all the same things as a divorce without actually dissolving the marriage. That means an agreement over distribution of common property such as the family home, child custody arrangements and visitation rights as well as spousal support.

Most legal separations involve the use of a family law attorney as well as documentation to register the separation at a court. The term ‘legal separation’ is used to differentiate it from a separation that has not taken place through a legal agreement. Of course, spouses separate all the time and do not necessarily go through any legal process at all. There are clear advantages to both spouses to arrange a legal separation as it clarifies any potential points of disagreement before the two spouses separate, after which communication can become less.

Advantages of a legal separation over a divorce

There are several reasons why a couple would choose not to end their marriage but go through a legal separation.  Here are some of them.

  1. It allows for a reunification at a later date. Separation may be a deliberate choice to see whether there is any chance at a later date of a rapprochement. Going through a divorce may be difficult to reverse if it later turns out to be the wrong decision and the couple wishes to get back together again.
  2. Religious reasons may be the deciding factor. Often, two people who get married belong to a religion which considers marriage sacrosanct. It is hard to get divorced from the whole cultural environment to which you may have belonged since childhood and so a legal separation fulfills the purpose of staying away from each other when the couple believes they have become incompatible without actually breaking the norms of their religion.
  3. Federal tax breaks are often available to married couples which would not be available after a divorce. Legal separation means a couple can physically live apart but still obtain tax advantage of a nominal marriage.
  4. Life insurance may be extended to a spouse depending on the policy. This cover may not be still valid if the two partners go through a divorce.

Divorce vs. separation – when divorce is best

If one partner, or both, intend marrying someone else, divorce will be necessary first before either ex spouse can legally get married. California law prevents any person from being married to two people simultaneously.

Divorce may be the best solution if there is no possibility of a rapprochement and there is no financial incentive for maintaining a marriage after a divorce. Going through a legal separation, then a divorce, may seem to prolong the agony and stress of both.

How a Long Beach and Lakewood lawyer can help you with a legal separation

Because a legal separation, like a divorce, means drawing up a legal agreement, you are best advised to contact an experienced family law attorney like Damian Nolan to help you through the process. You can contact the Law Firm of Damian Nolan at 562-634-1115.

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