Reaching a point where considering the dissolution of marriage is a scary place full of uncertainties and emotional distress. There’s this feeling that you need to make a quick decision, but at the same time there’s so much information to sort through that it quickly becomes overwhelming.When you factor in that there are a lot of common misconceptions and assumptions about legal separation and divorce, it’s really hard to know what to do next, or even where to start.

Divorce and Legal Separation

Divorce is a scary thing to think about because of all the life changes involved. There is a real finality to everything, and just thinking about it seems to end any hope of a positive outcome with your marriage.

Despite the problems you are going through with your partner, if you retain any hope or desire of reconciliation there is a lesser known option known as legal separation.

Disclaimers

Every state has different definitions and laws regarding divorce and separation. The legal system is complicated and broad.

Due to the law being so broad, and all the differentiations in every state and territory, it’s important to note that this article is not intended to represent legal advice, and is only meant as a launching pad for research into this subject.

Before making any legal decisions, it is imperative that you meet and consult with an attorney who specializes in this area of the legal world.

What Exactly is Legal Separation?

Every state has different laws regarding the definition of legal separation and how exactly it works.

For example, in Missouri, legal separation is a legal recourse that is not divorce. According to Missouri law, legal separation is known as separate maintenance.

The idea of separate maintenance is where the marriage is not dissolved by the court. Instead the court issues orders, and gives the same protections as would be issued in the instance of a divorce.

The difference between divorce and legal separation resides in the goal of the couple. For those seeking a path of potential reconciliation, legal separation is a much better choice than proceeding with the messy, time-consuming, and legally “permanent” option of divorce.

hand holding a pen

What’s the Process of Legal Separation?

This process for legal separation begins when one of the spouses files a petition to the court for a separate maintenance.

To file this, that partner must submit paperwork to the county court that one of them has been residing for at least ninety days.

Once the document has been filed, the court can choose to enter a judgement of legal separation if they find it is reasonable that the marriage can be salvaged by taking this legal action.

This legal action becomes a binding contract that resolves all issues related to debt, property, and children.

Some states, like Missouri, do not require a couple to submit a list of provable grounds for getting a divorce or legal separation. Others may require these proofs.

However, if there is one member of the marriage who refuses to go along with the separation it can become necessary to prove that there is a need for the legal separation. For those needing to provide grounds for their legal separation, the list of possible reasons is quite like those for divorce.

These grounds can include

  • The partners in the marriage have been living apart and separate for at least two years or more.
  • One of the parties in the marriage has been found to be involved with criminal activity of some kind.
  • There is a lengthy and provable history of what could be commonly considered unreasonable behavior on the part of one of the spouses.
  • One of the spouses has been abandoned by the other spouse for six or more consecutive months prior to the filing.
  • A separation within the last year due to a misconduct on behalf of one of the partners of the marriage.
  • One of the parties in the marriage went outside of their partnership and committed adulty when there is no understanding between both partners that the marriage is “open” to other sexual encounters.
  • There is an irretrievable and utter breakdown of the marriage as a functioning unit.

What Are the Difference between Legal Separation and Divorce?

It is important to understand the differences that exist between legal separation and divorce. Legal separation differs from divorce in that there is a hope of reconciling and rebuilding the marriage itself.

While there are similar practical legal ramifications between legal separation and divorce it is important to recognize the distinction separation vs divorce:


Similarities:

  • A court order must be sought in either case.
  • There is a disposition and the property of the couple is divided.
  • If there is a need for spousal support, then alimony is set up and maintained.
  • If there are children in the marriage, then the custody and support for each child is worked out. This also includes the right for visitation.
cutting marriage certificate using a scissor

Differences:

  • Unlike divorce, the act of separation is not intended to be the end of a marriage.
  • The purpose of a legal separation is the preservation and reconciliation of a marriage unlike divorce where the purpose is the dissolution of a marriage.
  • All that is required to end a separation is a ruling from the court that dismisses the separation itself.
  • If the couple reconciles there is no need for the parties to be remarried.
  • During a separation the two parties remain legally married and neither can proceed with getting legally remarried.
  • Social security, health care and other benefits are kept for either party in the marriage.
  • During the separation the spouses are still considered to be the next of kin so if there are any legal or medical emergencies decisions can be made for the other spouse.
  • In the case of debt, spouses can be held legally responsible for the other.
  • In the case of one of the partners dying during the separation then the other spouse still has the legal right to property of the deceased partner.

What is the Timeframe for Legal Separation?

When a legal separation document is signed, the time it takes to go into effect will very depending on the state or territory it is issued in.

In California for example, a legal separation goes immediately into effect as soon as the judgement is signed by the judge. This differs from divorce which requires a six-month waiting period.

Under Missouri law, a legal separation requires a full 30 days to go into effect. Because this couple is still legally married, all that Missouri requires to end the separation is to have the court ruling dismissed by a judge. Once the ruling is dismissed the marriage will then have full legal reconciliation.

Other states have varying lengths of times, as well, so it’s imperative that you investigate the length of time in your own state and do not make assumptions.

Why Seek a Legal Separation?

There are multiple reasons why a couple may choose to seek a legal separation. Some of these reasons for a legal separation can include:

  • Depending on the territories or country it is easier to get a legal separation than a divorce.
  • Neither party wants to remarry and chooses to have an indefinite legal separation.
  • The desire to reconcile between the two parties.
  • To prevent either partner from acting on an impulse.
  • The desire for one partner to protect themselves from claims of abandonment while the couple must be separated by a distance for an extended period.
  • To give both parties an idea of what living alone without the other could feel like.
  • A true test of how you feel about your partner when you are not seeing them on a regular basis.
  • In the case of moving forward with a divorce, this time apart gives both parties a chance to prepare for making a more amicable divorce.

Decide Which is Better: Legal Separation or Divorce

While it is difficult to keep a clear head while having marital difficulties, it is important to take full consideration of your options. Instead of making an impulsive choice, both you and your family deserve a full consideration of separation rather than immediately jumping to divorce. Both could impact your family in very different ways.

After reading this article, you should hopefully have a clearer understanding of the how both legal separation and divorce work, and can seek advice from legal counsel for the direction you believe you should go.

certificate of divorce

Final Notes and Reminders

When addressing legal issues, it is important to remember that every country and state has its own laws when it comes to how legal separation and divorce work. The timeline by which securing either one takes will also vary.

While your current living circumstances may lead you to feel you need a decision today, it is important to research all your options before you decide and act.

Before making any major legal decisions - make sure that you consult a lawyer whose area of expertise includes the area of legal separation and divorce. It is important to have expert help in this area because what you do not know can and will hurt both you and your family.

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