Divorce vs. Separation

Which One Is Right for You?

Divorce and separation may seem similar on the surface, but they are actually two very different legal relationship statuses. While most newlyweds don’t anticipate getting a divorce or separation, it is an unfortunate reality for many married couples who can no longer find a way to make their relationships work.
In this article, we’ll discuss the differences between separation and divorce to help you learn which may be best for you. By researching your options, you and your husband or wife can be sure to make an informed decision when it comes to either separating temporarily or permanently, or proceeding with a divorce.

What Is a Separation?

A separation is when two married people decide to separate, either short-term or long-term. This means that, for whatever reason, they have chosen to separate their assets, debts, and responsibilities without moving forward with a formal divorce.
Separation means that the couple is still legally married, but are living apart, either in the same home, or in separate residences.
In a separation, it is advised that the married couple create a Separation Agreement that helps to determine how bills, child custody and visitation, spousal support, and shared property (like the marital home or specific items) will be divided or addressed.
A couple can become legally separated without having to go through a lawyer or submitting any paperwork to the court.

In a Separation Agreement, "living apart" simply means that the married couple has decided to live separate lives. They may live in different homes, or they may live together in the marital home. If the married couple chooses to live in the same home, often one of the spouses will move into a spare bedroom or other space in the house as opposed to continuing to share a room.

What Is a Divorce?

A divorce is when a married couple decides to terminate or dissolve their marriage. This means that they no longer wish to be married and want to end their marital union permanently.
In an uncontested divorce, a married couple separates their assets and debts on their own or through a lawyer, and then submits their divorce papers to a court. For a divorce to be legal, the marriage must be dissolved by a court.

Couples who get divorced but who later choose to reconcile remain divorced until they remarry. They cannot reinstate their marriage after their divorce papers have been finalized in court.

Should I Get a Separation?

Separation is a good option for couples who aren’t sure if they want to proceed with divorce or who still wish to benefit from being legally married. You should weigh the pros and cons for you and your family before deciding if and how you want to proceed with terminating your marriage.
Some couples choose to separate because:
  • They can still share the same benefits and health care plans.
  • Their religious or spiritual beliefs prohibit them from divorcing, but they no longer wish to be together.
  • They are able to continue filing joint tax returns.
  • It can act as a trial before a couple decides to either remain married or to dissolve their legal relationship.
Couples who choose to separate are often willing to continue having contact with each other in some capacity. Often, separation is a good option for couples who aren’t sure if they want a divorce, or for couples who still want the legal benefits of being married without continuing a romantic relationship or living in their marital home.
It should also be noted that some states require a separation period before granting a divorce. Check your state’s divorce laws to determine whether or not you will need to separate before filing for divorce.

Should I Get a Divorce?

Divorce differs from separation in that it permanently and legally separates you from your ex-husband or ex-wife.
Couples who choose divorce over separation often choose to do so because:
  • They wish to end their marriage permanently.
  • They no longer wish to use each other’s health care benefits.
  • They no longer wish to file joint tax returns.
  • They plan to marry someone else in the future.
  • They already separated and now wish to divorce.
  • They do not feel the need to complete a trial separation before ending their relationship.
Divorce is often best for couples who no longer wish to have any legal ties to each other.
While separation can be used as a trial for couples who aren’t sure if they are ready to dissolve their marriage completely, divorce ends a marriage. Once divorce proceedings are completed in court, ex-partners are no longer considered legally bound together in a relationship.

What Are the Different Types of Separation?

There are three main types of separation: trial, permanent, and legal.
Trial separation: A trial separation is when two married people decide to separate temporarily. This means that after the trial is over, they may choose to divorce, reconcile, or separate permanently.
Trial separations are often used by couples who are facing issues in their relationships and aren’t sure whether they want to continue to be married, or if they want to proceed with a divorce. Trial separations can last for any length of time as determined by the married couple.
Permanent separation: Permanent separation is when a couple separates with no intention to reconcile. Depending on your state’s laws, you may not be responsible for or entitled to any debts or assets that your ex-partner acquires.
If you do choose to separate permanently, be sure to document the date and any agreements made between you and your spouse in case you do decide to divorce in the future. This will help to determine which debts and assets belong to who when you submit your separation information to the court.
Legal separation: Legal separation is only available in certain states and is considered a different relationship status from marriage or divorce. For example, someone who is legally separated cannot remarry without first getting a divorce.
While trial and permanent separations are often followed by divorce, legal separation is often the more popular choice for people who can’t divorce due to religious reasons, or parents who want to maintain a family unit for their children.

In some cases, insurance providers may consider a separation to be the same as a divorce. If you wish to get a separation so that you and your spouse can continue to be on the same benefits plan, check with your insurance provider before making a decision.

Not all types of separations are accepted in all states, so be sure to research how separation works where you live before moving ahead.
Decided separation is right for you?

What Are the Different Types of Divorce?

While all divorces generally end in the same way (with the married couple being divorced) there are a number of different types of divorce that couples can choose to go through. The most common forms of divorce include uncontested or contested, no-fault or fault, default, and summary.
Uncontested divorce: Uncontested divorce is when you and your husband or wife work together to come to an agreement in regards to how you will separate assets and debts, and how you will address child support and custody. In an uncontested divorce, both parties agree to the divorce and separate their lives without the assistance of a lawyer.
Couples who choose to go through an uncontested divorce often create a Separation Agreement together and submit it to the court for approval. Often, uncontested divorces don’t need to go to trial.
Contested divorce: Alternately, contested divorce is when a married couple cannot come to an agreement over the terms of their divorce without legal assistance. Generally, contested divorces must go through settlement negotiations and divorce hearings in court.
No-fault divorce: No-fault divorce is when neither party is to blame for the dissolution of the marriage. Most couples who choose this type of divorce list "irreconcilable differences" as the reason for the divorce.
Fault divorce: Fault divorce is when a husband or wife believes their partner was at fault for the breakdown of the marriage. For example, if one spouse was abusive, unfaithful, or if they abandoned their partner they may be considered to blame for the end of the relationship.
Default divorce: Default divorce is essentially when one person in a marriage files for the divorce but the other party doesn’t respond. A divorce can still be granted to the husband or wife who requested it without the other partner being involved if they cannot be located.
Summary divorce: Summary divorce is only an option in some states, but it is offered to couples who can separate easily and quickly. For example, couples who don’t have children, or shared assets or debts may qualify for a summary divorce, which lets them separate without the need of a lawyer.

Other types of divorce include collaborative, mediated, and arbitration. These types of divorce generally fall into the category of "contested", but how the couples reach an agreement differs. They may have collaborative lawyers, they may involve a professional mediator, or they may hire a private judge.

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Choosing How to End Your Relationship

The end of a relationship, especially a marriage, is always difficult, but once you and your partner know that you want to move forward with your lives separately, it’s important to choose the best legal process for yourselves and your family. By exploring your separation or divorce options and determining which is right for you, you can both move forward knowing what to expect and how to navigate the coming months.
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