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Why Get A Legal Separation Instead Of A Divorce?

Why Get A Legal Separation Instead Of A Divorce?

If you and your spouse are experiencing difficulties in your marriage and are contemplating divorce, you may want to consider legal separation first. The terms of the separation are different from a divorce, and may help you and your spouse to work out some of the issues that you are facing before you make the final decision to put an end to your marriage.

The main difference between legal separation and divorce is that when you divorce from your spouse, your marriage formally ends.  You are no longer married to each other and are free to remarry. In contrast, when you get a legal separation, you remain legally married while acknowledging that you are no longer living together.

When you and your spouse are legally separated, the court order granting legal separation contains the rights and responsibilities of the spouses during the separation period and also covers the legal issues regarding the marriage. Both spouses sign an agreement regarding division of marital assets and debts, child custody, child support, spousal support and personal conduct. For instance, if you have children, and the children are being cared for primarily by one parent, the other parent may have to make child support payments during the separation. Or, if one spouse has incurred a major debt that is not the responsibility of the other spouse during the separation, the other spouse is not responsible for paying the debt. These are some of the same issues that will be addressed should you decide to go through a divorce, so this trial run will give you and your partner time to figure out if permanent separation is what you really want.

During legal separation, you and your spouse are also not living in the same house. In some cases, you will be allowed to meet with your spouse or invite her/him to your home whenever you would like, but terms of the legal separation require that you and your spouse have very limited contact during the separation period. During that time you and your spouse may want to see each other while you are separated. So it is important to utilize this time to talk about your issues in a way that will not make any party feel blamed or threatened.

Benefits of Separation over Divorce

Since legally separated couples are still considered married, this status provides some benefits over divorce to both parties in some situations:

  1. While you cannot marry again, you still have the right to inherit from your spouse.
  2. If you remain married for 10 years or more, you may qualify for some social security benefits.
  3. You retain the benefits of the couple’s health care coverage – medical or dental benefits that are needed for the family. This is especially important if you have children that are faced with serious medical problems that require ongoing treatment.
  4. If your spouse is in the military, you may gain benefits from the Uniformed Services Former Spouse Protection Act if you stay married for 10 years or more
  5. The separation process is also ideal for those where divorce is against their religious beliefs. This way, both spouses are able to live apart but can still remain legally married for the sake of their religion.
  6. Legal separation allows you plenty of time time to settle unresolved issues with your spouse so you can either resume your marriage or decide on divorce and move on with your life.

As a final note, you may also want to consider marriage counseling in order to talk with an unbiased party that can help you to determine what it is that you really want out of a marriage.

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