When a relationship simply isn’t working, there is strength in ending it. Many people rush to divorce, but there are other alternatives for couples to consider. Legal separation is another way for people to distance themselves from each other.
This essay will focus on legal separation and emphasize its advantages and disadvantages for people who desire to stop the difficulties of their marriage.
Before committing to a legal separation, it’s vital to understand the advantages and disadvantages of the arrangement.
Many married couples see legal separation as a step before divorce, a sort of interim period during which they can decide if divorce or reconciliation is the best option for their partnership.
Depending on your circumstances, applying for legal separation may or may not make sense; for others, it may be a better alternative than divorce.
What is a Legal Separation?
Legal separations are less expensive, less stressful, and less difficult than divorces. Legal separation entails more than just leaving a common residence and living separately. A legal separation allows the marriage to continue while a court decree explains the rights and responsibilities of both spouses.
What happens if you leave before you file? By leaving without a separation agreement, you may be giving up your entitlement to child custody, property, and support. These agreements provide a strategy for child custody (and, if necessary, child support), visitation schedules, financial support, property and debt split, and payment of legal fees. A legal separation agreement is necessary to guarantee that your rights are clear.
Property Division and Separation Agreements
When you and your husband decide to divorce, you must agree on the conditions of your separation. Separating your financial lives and, if there are children, arranging a custody agreement, parenting plan, and/or visitation schedules are all part of this process. You will negotiate this settlement and file it with the court with the assistance of your lawyers.
Property division is one of the most challenging components of a legal separation. California is a state that recognizes community property. This means that a married pair is treated as a single community. As a result, property earned during their marriage or partnership is regarded as common property. Similarly, any obligation incurred is classified as community debt.
It is worth noting that California has a quasi-community property categorization as well. This is property or profits obtained during the marriage or partnership while the couple was residing outside of California. The principle behind quasi-community property is that if the property would have been considered community property if the couple had been residing in CA at the time of acquisition, it will be considered quasi-community property and subject to property distribution during a divorce or legal separation.
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Among the property that must be shared during a legal separation are:
- Houses and other types of real estate
- Automobiles, boats, and other modes of transportation
- Antiques and art
- Cash and bank accounts
- Credit cards and mortgages
- Pensions and retirement accounts
- Plans for 401(k) contributions
- Several insurance policies
- Portfolios of stocks and investments
Gifts or inheritances are not usually considered shared property. Also, if a couple has a premarital agreement that designates the particular property as separate or individual property, that property will not be divided during your legal separation settlement. Separate property that is not subject to property division is that which they had prior to the marriage or the registration of the partnership. Furthermore, any gains from separate property (such as rent on a rental property) remain your own property.
What are the Disadvantages of Legal Separation?
Because of the nature of legal separation, we will begin with its disadvantages. The three primary disadvantages of legal separation are as follows:
- Legal separations are as complicated as divorces.
- Legal separations are just as stressful as divorces.
- They may be unnecessary in your case.
Though they are all related, each of the disadvantages focuses on a different area of your marriage and impending legal separation. Let’s see the disadvantages of legal separation in details below.
#1. Legal separations are as difficult as divorces.
A legal separation frequently necessitates the same amount of time, paperwork, and legal assistance as a divorce. Legal separations, like divorces, entail the distribution of property, including debts and assets. Couples who seek for legal separation must go through the same division process as those who divorce.
That means that if a couple decides to divorce after a separation, they will have to go through the process twice. Those who reconcile often feel as if they have already been through the divorce process.
Furthermore, legal separations, like divorces, include litigation and trial proceedings. If you and your spouse cannot agree on child support, custody, or asset distribution, you will have to settle the issues in court. This can be just as time-consuming as divorce proceedings.
Consider this: because of the cost and time required in a legal separation, couples can usually avoid the headache by arranging an informal separation or, if reconciliation is not an option, filing for divorce.
#2. Legal separations are as stressful as divorces.
A legal separation may appear to be an useful “test” to determine whether a couple should remain married or divorced, but it is a test that many couples fail — not because of the relationship itself, but because of the stress involved in the separation process.
Because legal separation is as complicated as divorce, the stress caused by the proceedings may be the final straw for a couple, putting an additional strain on an otherwise delicate relationship.
Consider this: instead of utilizing legal separation to determine the outcome of your relationship, consider employing an informal separation. It will provide you with the same amount of space without the added headache of filing for separation.
#3. Legal separations may be unnecessary in your case.
Many couples who inquire about legal separation believe it is a vital step in determining the course of their marriage. They may believe that the formal framework of the separation is similar to that of a divorce, but that the marriage has not been permanently dissolved.
Unfortunately, this is not always the case. Couples can achieve many of the same goals by using an informal separation, such as giving each other more space and considering whether being apart is ultimately the best decision, without the cost and commitment of a legal separation.
Consider this: while a legal separation may appear to be the only option to decide the future of your marriage, treating the separation informally, even if initially, can be a better method to swiftly assess the status of your marriage.
Advantages of Legal Separation
Legal separations have numerous advantages over divorces.
#1. Financial Benefits
One significant advantage is the financial side. Both parties retain their medical, life, and other insurance benefits throughout a legal separation. If a marriage is lengthy enough, both parties may be eligible for each other’s social security payments. Tax advantages continue even after a legal separation.
#2. Reasons of Culture or Religion:
Many religions and societies discourage or outright prohibit divorce. Both parties can keep their legal marital status while living separately under a legal separation.
#3. Possibility of Returning to Full Marriage:
Some couples need to take a radical step or stop in their marriage, but they want a way back if things improve. Many couples benefit from a “trial separation” to help them work through difficulties. The journey to full marriage would be considerably smoother with a legal separation.
Is Legal Separation a Good Divorce Alternative?
Separation is not always a viable option to divorce because it often requires the same level of stress, cost, and time as the divorce. Couples who believe reconciliation is likely as a result of their separation can make an informal agreement, whereas couples on the other end of the spectrum should consider divorce.
However, for couples who decide that a legal separation is the best next step in their marriage, a family law attorney can assist in making the procedure and transition as easy as possible.
The Difficulty of Legal Separations And Divorces
Ironically, a legal separation can take as long and be as stressful as a divorce because it involves things like assigning assets and debts and dividing property. Those who divorce after a separation must go through the entire procedure again, while those who choose to continue their full married partnership frequently feel as if they have gone through a divorce process to reclaim their connection! Furthermore, if the couples cannot agree upon certain aspects of the separation, the only choice is to go through the courts. This adds stress and money to the situation. You can, however, choose to perform an informal separation or, if it is felt that the couple has very little to no possibility of rejoining, to proceed with the divorce procedure.
Disadvantages of Waiting to File for Divorce After Legal Separation
While some people choose legal separation as a last resort to stop the sexual, social, and emotional aspects of their marriage, its primary aim is to be a temporary solution, therefore there are certain disadvantages to not filing for divorce after legal separation.
If you already have a legal separation decree, you have a formal agreement on all marital dissolution matters such as property division, spousal support, child custody, support, and parenting time. However, if you do not file for divorce after legal separation, your marital status will remain “married.” As a result, you are unable to remarry.
Furthermore, if you die, your estranged spouse has the legal right to inherit your possessions. As a result, if you want to change your marital status or keep your assets from being inherited by your ex-spouse, you may need to apply for divorce after legal separation.
Legal Separation Might Not Be Necessary
Couples frequently believe that a legal separation is a necessary step in determining the future of their marriage. Most of the time, though, this is simply not the case. Couples obtain nearly all of the same goals by using an informal separation without the added stress, commitment, and expense of a legal separation. At first look, it may appear that a legal separation is the only way for your marriage to survive, but an informal separation is frequently a better barometer of how recoverable your marriage is.
Separation vs. Legal Separation
It’s time to clear the air…
Contrary to popular belief, a legal separation entails much more than one spouse merely leaving the family home. In certain circumstances, spouses will split up and stop communicating for several years.
Understandably, you might conclude that they have a legal separation. This isn’t the case. This is a trial separation. This may be crucial in some states when determining community (marital) property and other support concerns.
Although physically separated, a couple is not legally separated until the courts grant a decree of legal separation.
In some ways, a legal separation is more comparable to divorce than it is to being separated (living apart).
What happens if one spouse wants a legal separation and the other wants a divorce?
Simply put, divorce triumphs.
You and your husband must both agree that you want a legal separation. If you file for legal separation and your spouse decides they want a divorce, the divorce process will be done by the family court.
An annulment of marriage, albeit considerably less common, maybe another option worth considering.
An annulment can be obtained by a couple, which practically implies that both spouses can move on as if their marriage never happened. People frequently pick this option for religious reasons, as the Catholic Church does not accept divorces.
That means an annulment is an only officially legal way to end a marriage, preserving certain religious rights and clearing the way for future marriages if a person so desires. Annulments can also be granted for reasons such as incest, bigamy, coercion, fraud (such as attempting to obtain a green card or concealing a pregnancy), unsound minds by one or both spouses because one or both were under the influence of excessive drugs or alcohol at the time of their marriage, or they are cognitively disabled.