22 Aug 16

Are We Legally Separated if We’re Getting a Divorce?

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If you and your spouse enters a legal separation, you are still married, unlike a divorce that ends the marriage. The court issues an order that mandates certain duties and rights of you and your spouse until the marriage ends. Technically, you are living apart during a legal separation. Most couples find this helpful while working through personal and financial issues that are affecting the marriage.

Legal Separation Proceedings

The court decides the terms of the legal separation, similar to what it does in divorce proceedings. Based on your union, the terms may include:

• Payment of separation maintenance – this may include child support and spousal support, but is called something different for legal purposes to distinguish it from a divorce. An attorney files a “motion pending litigation” document. What the court awards for the legal separation will not influence what the spouse receives in the divorce proceedings.
Child visitation and custody
Division of property – this is usually determined by your situation and the situation your spouse faces, and how this relates to the property in question.

There are also common forms of separation that may affect how property is divided during this time.

Trial Separation

A trial separation refers to the time period that you and your spouse lives apart. During this time, both of you may decide whether you want to continue with the marriage or file for divorce. Essentially, a trial separation does not have a real legal effect.

Any debt or assets acquired during the trial separation is considered marital property. Even if you and your spouse decide to get a divorce, this does not change.

Living Separately

There are some circumstances that may lead you and your spouse to decide that living separately is the best thing for the relationship. At this point, both of you have decided that continuing the marriage is not an option. However, there are issues within the marriage that are not wholly resolved.

Some states require married couples who want a no-fault divorce to live apart for a specific time before making an official filing. Keep in mind that living separately may affect how marital property is divided.

Depending on the state, any debt or property acquired during this type of separation is classified differently. Some states classify the property based on whether you or your spouse intends to end the marriage.

Other states consider debt and property attained while living apart separate from the marriage. Still, there are other states that consider everything acquired while you are legally married to be part of the union until official paperwork is filed with the court.

Permanent Separation

The decision to end the marriage can lead to a permanent separation, which does not have the same legal effect as a legal separation. Unlike a legal approval to live separately, a permanent separation grants full ownership and responsibility for debts and assets acquired during this time as belonging to the person who acquired the assets.

That is to say your spouse has no legal right to anything you acquire. Anything obtained after a permanent separation, but before the divorce is finalized, is usually considered necessities for the family. Things such as house payments and caring for the children are treated as joint debts.

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