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11 Oct 17

Can we rescind a legal separation and file for a divorce instead?

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Yes, you may rescind a legal separation and opt for a divorce instead. This can only be done if the final judgment for legal separation has not been made. If it has, then you will have to formally convert the legal separation into a divorce.

The process of turning a legal separation into a dissolution of marriage involves new paperwork that should be signed by both parties. After some time, however, the legal separation can turn into a divorce automatically.

The same form used to file for legal separation is the same one used for divorce in some States. In this case, an amendment is made to the original Petition for Legal Separation by filing a Second Petition. This is called the Amended Petition. There is no charge for this process, but your spouse has to respond to the amendment. In other cases, the Petition for Legal Separation has to be converted into a Petition for Dissolution of Marriage.

In order for a separation to turn into a divorce, the petitioner has to seek the agreement of the respondent. The petitioner is the one who is filing for legal separation into divorce.

Divorce versus Legal Separation

Divorce and legal separation are virtually the same. In a legal separation, the couple does not live together. The same is true for a trial separation. However, in a trial separation, the individuals are not legally protected against issues such as debt and alimony.

In most States, divorce and legal separation are the same. Child custody arrangements, spousal benefits, and division of property decisions are made before the formal separation is done. Couples who opt for legal separation instead of divorce do so for religious and cultural beliefs that prevent them from divorcing. However, they cannot remarry under legal separation.

Legal separation is less risky than a trial separation as you can claim assets and remove liabilities such as your spouses’ loans from your responsibility.

In some States such as California, individuals have to be residents of the State for at least 6 months before divorcing. Thus, legal separation is a temporary solution to this.

In other States, it is mandatory to legally separate before divorcing for a specified amount of time. In this case, the legal separation automatically turns into a divorce after one to two years if the couple decides to do so.

Some spouses want their partner to know that they need to change certain things or else their marriage will end. They send them a wakeup call by filing for legal separation hoping that they will change. You may also opt for a legal separation if you fear for you and your children’s safety.

What about the Terms of Separation?

In a legal separation, the terms related to custody and visitation, spousal benefits if any, and property and debt division have to be decided. A legal separation can only occur if these terms have been established.

If one or both individuals wish to convert the separation into a divorce after some time, it will be assumed that the original agreed-upon terms will remain. However if one of the individuals contests any of the terms, they may be changed. This will, however, increase the time it will take to change from a legal separation to divorce.

The State of Divorce and Legal Separation in the United States

90% of the population gets married before they are 50 years old. However, 40-50% of these marriages end in divorce. The success rate of marriages involving divorcees deteriorates with each subsequent divorce.

2014 data shows that the rate of divorce in a total of 49 states was 6.9 per 1000 people. In the year 2000, the rate was 8.2 per 1000 people showing that divorce is on the decline.

It is, however, hard to tell how many of the divorce-free marriages are happy ones.

Out of the 50-60% of marriages that do not end in divorce, many end in trial or legal separation.

Couples may decide between legal separation and divorce based on their preference, religious beliefs and other factors such as the possibility of reconciliation and safety.

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