As family law attorneys, we are often asked by our clients about the difference between being legally divorced and legally separated, and which process might be more beneficial to them and their children.
Contrary to what many people believe, a legal separation is not a divorce. In a divorce, the parties must property divide assets and debts and also have a judge make a determination on custody and support for the children. A legal separation allows parties to get some of the benefits of a divorce without the consequences. Many people consider it a “lesser” or softer version of divorce that might be helpful for them for various reasons.
Beyond just spiritual or cultural reasons, there are many reasons why people choose to remain legally married but separated. A separation agreement is much easier to make than a divorce. Many people who might be denied a divorce based on a lack of residency could get a legal separation. However, in most cases, a legal separation does not change the fact that a couple is married in the eyes of the law.
For those with children, one of the most common reasons to legally separate is to keep the options open for parents to re-marry or re-establish a relationship. When a couple legally separates, it does not necessarily mean they will be divorced forever. In many cases, the couple remains separated, each getting on with his or her live but at a point down the road get back together and perhaps reconcile their marriage. Therefore, a legal separation offers couples a way to take an extended “pause” on their relationship and not have the finality of a divorce judgement.
If you have children from those marriages, it is even vitally important. This is because it allows the couple the freedom to parent cooperatively and flexibly. The parties can work together towards a common goal of raising their children properly. In this case, the couple can put together a legal separation agreement that addresses issues such as custody, visitation, child support and the division of property. Then, the parties can modify the terms later on if there is a reconciliation.
It is important to have an experienced family law attorney help you with the process of legal separation. They can draft the separation agreement and get it signed by the court. Afterward, the separation agreement of the terms of the legal separation become legally binding on the parties.