Many couples choose to try separation before divorce for a number of reasons. It may be that the couple just “needs space” and has the intention of trying to work things out after they both cool off. At the other extreme, the couple may have already decided to get a divorce and the separation is merely a tool to start splitting the property and working through the issues.
But if you are considering a separation, you should know that there are different “types” of separation, each with its own legal ramifications:
Many people think that, if they split up and file for divorce, they are “legally separated.” That is not actually true. The term “legal separation” has a specific meaning under the law and it is not what most people think it is.
A legal separation is granted by the court. The couple separates anddivision of property is ordered. Child support and alimony is also typically granted, although it is usually referred to as “separate maintenance”. Anydebts incurred or any property acquired during a legal separation is normally considered to be separate property and not part of the marital estate. A legal separation is every bit as involved and time-consuming as a divorce, except you’re not actually divorced. Though a legal separation is considerably similar to a divorce, the parties are still considered to be married and cannot marry someone else.
This is the equivalent of a legal separation but without a court order. The couple separates and establishes separate lives. Child support and/or alimony may or may not be paid but it will depend upon the agreement between the two parties (not a court order) as the court has not become involved in this type of separation. Parties are still considered to be legally married but most states will treat a permanent separation as a legal separation when it comes to property and debts acquired during the separation. There are some exceptions to this so you should check the laws of your state to be sure.
One exception worth noting is that most states do consider debts incurred as a result of maintaining the marital home or in caring for the children are still considered to be jointly owned rather than separately owned.
This type of separation may last as little as a few days, a few weeks or even a few months but the key distinction is that the intention behind the separation is limited. No decisions have yet been made about property division, child support, spousal support or even the divorce itself. In fact, many trial separations result in a reconciliation between the parties. While the parties usually live apart during this type of separation, one party is often merely staying with friends or family until the couple decides how they want to proceed. Any property or debt incurred during this time is considered to be jointly owned or owed.
In addition to these basic three types of separation, the couple may also simply be “living apart” and incorporate various distinguishing factors from one or more of the above definitions. For example, the couple may live apart but still maintain joint lives for the most part and have not yet divided property and/or debts. Joint checking accounts, credit cards and the like may or may not be in use by both parties and depending upon the laws in your state, debts and property acquired during this time may or may not be considered jointly owed or owned. You’ll need to consult your state laws and/or an attorney to be sure.
Many states now require that the couple be separate (legally or otherwise) for a certain period of time before a divorce will be granted. This is often referred to as the “cooling off period.” In addition, many states also will convert an order of legal separation into a divorce decree after a certain period of time and assuming that it is requested and certain requirements are met.