Is your marriage experiencing an unstoppable meltdown? Are you and your spouse exploring your options for a better life for your children and yourselves? Perhaps, you may be considering filing for legal separation. Read on to know why it appeals to many couples. Getting a good grasp of the issues involving legal separation vs. divorce can help you decide how you want to go.
Legal Separation: Some Basic Facts
Legal separation is a court-ordered agreement that mandates the rights and responsibilities of a married couple who choose to live apart and lead separate lives.
When spouses are legally separated, a court has the authority to make decisions about raising their children, spousal support, child support, and division of property. Thus, they are legally required to follow the orders handed down by the court.
Being legally separated means you cannot marry anyone else in the future. Likewise, you cannot remarry each other. You still have the right to inherit from each other. A child born to a married woman is considered the legal child of the other spouse in the absence of evidence to the contrary.
If any legally separated couple intends to remarry, any of the spouses must file a divorce petition. Talk to a reliable family law attorney in Pearland, Texas to discuss your options.
Should you move out of your home?
To be on the safe side, remember that everything you do before a court accepts your separation agreement may have an impact later on your personal property and child custody. To illustrate, the person who moved out of the residence could be viewed as abandoning the relationship and forfeiting the ability to claim ownership or custody later.
Your Guide in Filing for Legal Separation
Usually, the petitioner claims that he is battling with irreconcilable disagreements with his spouse and that living apart would be beneficial for both of them.
To begin the process, you must meet your state’s residency requirements. The reason? The conditions for residency are the same for both legal separation and divorce. Know your state’s divorce laws to find out what kind of residency requirements exist in your state.
While most states permit legal separation, these are some that do not recognize it: Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas.
Next, you need to file a petition for legal separation with a family court. At the same time, you will also file your legal separation agreement unless you decide otherwise. Such agreement must cover all issues related to children and spousal support, including the following:
- marital assets (like a home or any vehicles you purchased together) and how they might be distributed
- who lives where and pays what debts,
- any rules and guidelines about dating other people may be considered adultery in some states.
If you did not file the petition jointly with your spouse, you need to have your spouse served once your petition for legal separation has been filed.
As with a divorce, your spouse will usually be given 30 days to respond to your petition before the separation becomes final.
If your hubby or wife does not agree with one or more of the petition’s provisions, he/she can file for a counter-petition. Let’s say that after doing it and both of you cannot reach an agreement through mediation or collaborative law, you will be required to go before a judge to resolve the points on which you were unable to reach an agreement.
After agreeing to the provisions of the petition, you and your spouse sign and notarize the agreement, then the court clerk enters it into the court records and submits it to a judge for approval before it can be implemented.
What Happens When Your Petition Is Granted
When the exact date of separation is promulgated, it prevents a spouse from spending money from a joint credit card or bank account without permission. Other assets, such as real estate and automobiles, are also restricted under this arrangement.
The loss of any claim or responsibility for the income, debts, and property acquired by one spouse as of the date of the separation is common in various states when spouses permanently separate.
If the spouses decide to divorce after a legal separation order is in place, they could use some or all of the terms of the order in a marital settlement agreement.
In some states, the courts will set a deadline for the termination of a legal separation. You and your spouse must decide on whether to reconcile, to seek the court to extend the legal separation, or to file for divorce by this date.
Considering that regulations differ from one state to the next, you should consult with an attorney practicing family law who is compassionate and results-driven to ensure that you are taking the proper procedures to protect yourself and your children legally.
How Legal Separation Differs from Divorce
Although legal separation and divorce are pretty similar in many ways, there are some significant differences.
Legal separation preserves the legal status of the marriage unless one of the spouses takes further action towards divorce. Hence, it can be temporary. Divorce terminates the marriage with finality. It makes one live life as a single person and remarries. Thus, it is permanent.
Listed below are some other differences between legal separation and divorce.
- Health care/other benefits: Legal separation allows for the retention of health care and additional benefits, including certain social security benefits that terminate with a divorce.
- Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren’t considered next of kin.
- Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
- Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
- Remarriage/reconciliation: Divorce cannot be undone; reconciliation is more straightforward with legal separation. You will have to remarry with a divorce if you want a legal reunification.
Why Many Couples Choose Legal Separation vs. Divorce
Several factors influence why legal separation is favored over divorce, namely religious views, some financial considerations, and the welfare of minor children.
- Legal separation can allow the parties to continue their lives in their ways without compromising their religious convictions.
- It gives the couple the time and distance they need to work things out.
- A spouse remains eligible for health insurance coverage via the other spouse’s employer. However, some health insurance plans do not allow spouses to remain on the plan if legally separated. Thus, check with the health insurance company.
- The couple can still file taxes jointly, leading to some tax benefits. It is important to remember that you must have been married for a minimum of ten years to be eligible for Social Security and military benefits from your spouse’s employment.
- Even when the parents function as a separate unit, the family may remain intact, allowing for stability and order to prevail most of the time.
- Many parents also say that formally separating from their spouse before divorcing helps their children adjust better to the divorce.
But There’s No Legal Separation in Texas
You got it right. Although the state of Texas does not recognize legal separation, you have some options which have similar effects of a legal separation. Why is it so? These alternatives can address child support, alimony, visitation, child custody, and other issues should you choose to live separately.
1. Temporary orders
Temporary orders can cover various issues, such as custody of the children, who will receive what property, and who will be responsible for which bills while the petition for divorce is being heard.
2. Protective orders
The right to petition the court for a protection order exists in the event that you have been abused by your spouse or that your spouse has made threats to physically harm you while married.
In addition, protective orders can also dictate who is allowed to remain in the house and who is required to leave.
3. Suit Affecting the Parent-Child Relationship
Popularly known as SAPCR, this petition which is filed in family court asks the judge to make a custody, visitation, child support, medical support, and dental support order for a child.
4. Separation agreement
Simply put, a separation agreement is a legally enforceable document signed by both spouses to resolve issues pertaining to property, debt, and children.
We hope that this article helped you understand the most salient points between legal separation vs. divorce. Summing up, you are the best person to decide if legal separation is your best option for your spouse, children, and you.
If you are contemplating living separately from your spouse or if you’re planning to apply for divorce, you must be aware of your rights and understand what is involved in the process. Having a family law attorney and advocate can help protect your parental rights, responsibilities, and relationship with your children. Consult with our compassionate attorneys on how to proceed according to what is best for your family.