Definition of Legal Separation and Divorce

Written by joseph nicholson
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Legal separation and divorce are two processes that can modify or end a marriage. Trial separation, where two spouses simply live apart for a period of time, does not involve intervention of a court. Legal separation is a formal, court-sanctioned division of marriage property, which is its primary aim, and is obviously more lasting and significant than mere trial separation. Divorce is a process similar to legal separation in which the marriage is officially dissolved. Here, dividing marital assets is a step toward the goal of terminating the marriage.

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Identification

While legal separation is sometimes a waypoint on the road to divorce, not all divorces go through legal separation. And not all legal separation continues to divorce. Only divorce, or dissolution as it is formally called, entirely terminates a marriage and all its attendant rights and responsibilities. Legal separation accomplishes many of the same effects as divorce, but does not dissolve the marriage, leaving some rights and privileges intact.

Function

Divorce is meant as a full and final end to a marital relationship. As part of the process, the spouses must divide their property, and make arrangements for child custody, alimony and the settlement of debts. The couple has the right to create virtually any arrangement they like, but the court can intervene and apply state laws where an agreement is not forthcoming. In legal separation, the spouses follow much the same course, using attorneys, mediators or arbitration to reach a settlement. The goal of legal separation is to find a workable solution for an incompatible couple and use the authority of the court to legally divide their ownership interests in marital property.

Features

Both divorce and legal separation begin with the filing of a petition by one spouse or the other. The petition contains the terms the petitioner would like enforced. The other spouse has the opportunity to respond, and can either accept or contest the terms in the petition. When an agreement to terms is reached, a formal settlement agreement is drafted and filed with the court. The divorce or legal separation becomes official upon an order from the court. A divorce can either be based on a fault in one spouse, such as abusive behaviour or incarceration, or no-fault.

Significance

There are several reasons why a couple might choose legal separation over divorce. One of the most common is when divorce carries a social or religious stigma. In these cases, the spouses can live entirely separate lives from a civic and legal standpoint without officially terminating their marriage. Another common reason for legal separation is to preserve some benefit of the marriage union, such as rights of survivorship, access to pension or social security benefits, or insurance. Because a divorce terminates the marriage, none of these rights extend beyond the official decree of divorce.

Considerations

Sometimes, legal separation provides a cooling off period after which spouses reconcile. In other cases it becomes a necessity because of a badly strained relationship and practical considerations that simply cannot wait for the full divorce process. Not all legal separations proceed to divorce, but when they do, in many states, this is simply a matter of either spouse filing to convert the legal separation, with its terms intact, into a dissolution of marriage. Other states require a new petition. When a legal separation exists prior to a marriage, courts are unlikely to make significant modifications to the terms of the separation, especially those involving possession and ownership of assets.

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