The Differences Between Separation and Divorce

There is a tendency among some to use the terms “separation” and “divorce” interchangeably, but legally these are two very different issues.

Here’s a quick overview of what you should know about the differences between them.

Legal distinctions

The term “separated” can just mean that the couple is living apart—the couple may or may not have gone through a legal form of separation to establish some basic “ground rules” in addition to living apart. Couples that are separated are still legally married and still able to file tax returns as a married couple in most cases. However, there may be issues that need to be sorted out with regard to child custody and support, alimony, property rights and other issues that might come up during a divorce.

Legal separation, though it still involves a married couple, is similar in many ways to a divorce and still marks a significant change in the status of the marriage. However, with a separation agreement, it will determine the division of your assets, custody, child support,  maintenance and all other issues that may arise in a divorce.  Once you execute an agreement, you have the option to file it with the County Clerk in the county where you reside. Alternatively, you may submit a judgment of separation for which the terms of the separation agreement become enforceable as a court order.

Many couples do a more informal separation and come to their own decisions about how they will handle issues during that period of separation—usually this precedes a divorce.

A divorce is a legal dissolution of the marriage. It involves more thorough court processes, and final decisions over issues such as those listed above. All assets must be divided, and there is no longer any ability for either spouse to file their taxes as married.

If you opt to execute a separation agreement, those terms will later be incorporated into your divorce if you choose to get divorced. Thus, you will not be entitled to share in any future assets of the other party.  You will not have the option to renegotiate the division of assets or maintenance.  Thus, you should speak to an attorney to discuss which option may be best for you. Often times, parties opt for separation agreement when there is a need for continuation of health insurance.

To learn more about legal separation, divorce and the differences between them, contact an experienced divorce lawyer at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP.