Elmer McDuffy: Which Is Better Divorce Or Separation?

A legal separation does not put an end to the marriage; it enables you to live separately while remaining married. During the time you are living apart, you have a court order that outlines the rights and responsibilities of each spouse. Your legal separation agreement will cover all issues that would be covered in a final decree of divorce. If you have children how much child support you receive or pay will be documented. Custody will also be documented according to the agreement the spouses come up with together. You remain legally married while choosing to live separate lives. Issues that can be addressed in a separation agreement are the division of marital assets and debts, child custody and child support, visitation schedules and spousal support. The same issues addressed during the divorce process are also addressed in a separation agreement. A separation agreement can protect your interests until the decision is made to file for divorce. The separation agreement also sets precedence for the divorce that may follow.

If you divorce after a separation and your case goes to court, a judge is likely to assume that since you were satisfied with the separation agreement, the agreement should carry over to the divorce settlement agreement. For that reason, it is important that you come to a separation agreement you can live with long term. If, however, the terms of your separation agreement were not workable during the period of separation you can petition the court to draw up a new divorce settlement agreement. A legal separation agreement can be a learning tool to use to find out what you can and can’t live with after the divorce.

Advantages to Legal Separation

Although a legal separation and divorce have many things in common, there are some advantages to separating rather than divorcing. Those advantages include:

• It allows couples time apart, away from the conflict of the marriage to decide if divorce is what they truly want. A separation can be a cooling down period if there has been a lot of conflict in the marriage. It can also be a period of time when a couple can take advantage of couples counseling and finding new ways to handle conflict when it arises in the marriage.

• It allows for the retention of medical benefits and certain other benefits that divorce would bring to an end. Legal separation, unlike divorce, doesn’t leave one or both spouses without healthcare insurance. Legal separation may be a better option if a couple is struggling financially or if a woman has been out of the workforce for a long period of time. A period of separation will give a long-term stay-at-home mother the opportunity to become more financially stable while still able to enjoy the benefits of marriage.

• If your religious beliefs conflict with the idea of divorce, you are able to live separately and retain your marital status for religious beliefs.

• If you are a military spouse, you may wish to remain married for 10 years so that you can take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act. Please be aware, though, that just as in civil cases judges have great discretion when it comes to splitting assets like retirement income during a military divorce.

• Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse. If at retirement age your spouse will draw more social security than you, it is to your benefit to remain married for 10 years so you can draw a larger sum of social security by drawing on your spouse’s social security retirement.
• If the decision to divorce is made, the legal separation agreement can be converted into a divorce settlement agreement. This, after the decision to divorce, has been made will save the expense of a long and conflicted journey through the family court system.

Grounds For Divorce

Before filing for divorce, you should first consider the grounds for divorce, as these will need to be specified as part of the divorce process. Currently, the five possible grounds for divorce are: adultery, unreasonable behavior, desertion, living apart for more than two years (with agreement) and living apart for more than five years (without agreement). In practice, divorcing couples who both want to get divorced will often decide to choose the reason of ‘unreasonable behavior’ as a catch-all ground.
• Adultery: The ground of adultery can be used where your husband or wife has had sexual intercourse with someone else of the opposite sex (so if your husband had sex with a man this does not count as adultery). It must be actual sexual intercourse – not just a kiss or ‘heavy petting’. If you decide to file for divorce on grounds of adultery, you must do so within six months of discovering that your spouse cheated on you – although this time limit does not count if you have stopped living together. You can only use the ground of adultery if you are the ‘innocent’ party (i.e. your husband or wife slept with someone else not if you committed adultery). However, if you both had sexual relationships with other people, either husband or wife can file for divorce.

• Unreasonable behavior: There are essentially two distinct situations where the ground of unreasonable behavior is given in a divorce petition: firstly where unreasonable behavior has actually occurred and secondly where none of the other grounds for divorce apply (e.g. where husband and wife have simply drifted apart and no longer wish to remain married). Although unreasonable behavior can constitute serious accusations including domestic violence or drunkenness, it also encompasses rather vague issues such as lack of support in maintaining a household. In reality, there is a very low standard when it comes to unreasonable behavior, but some factual reason must be given and an incident of ‘unreasonable behavior’ must have occurred less than six months prior to filing for divorce. It should be noted that, if your husband or wife has become intimate with someone else but has not had sexual relations with them, although adultery cannot be given as a ground for divorce, unreasonable behavior can be used. Similarly, if your spouse has a sexual relationship with a member of the same sex, this does not count as adultery but can count as unreasonable behavior.

• Living apart for more than 2 Years (with agreement): If you and your spouse have lived apart for at least two years, and you both agree to get divorced, this ground can be used.

• Living apart for more than 5 Years (without agreement): If you have not been living with your husband or wife for at least five years, you can file for divorce on this ground, even if your spouse does not agree to divorce.
• Desertion: If your husband or wife left you, without your agreement or a good reason and with the intention of ending the relationship, it may be possible to use the ground of desertion when filing for divorce. They must have deserted you for over two years within the last two and a half years and you can have lived together for up to six months during this period. In practice, this is a rarely used ground.

There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:

• Health care/other benefits: Legal separation allows for the retention of health care and other benefits including certain social security benefits that terminate with a divorce.

• Marital status: Legal separation allows you to retain your marital status, meaning that you’re not free to marry another; once you’re divorced, you can remarry.

• 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 easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.

Legal Separation vs. Divorce: Similarities

In both divorce proceedings and in the proceedings for legal separation, the court decides the following:

• Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a “motion pending litigation”).

• Child custody

• Child visitation

• Property division (both legal separation and divorce property division is based on the couple’s situation and how it relates to the property)

Circumstances may arise that lead to couples living apart with no intent to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.

Trial Separation: Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and therefore, likely marital property.

Permanent Separation: Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children’s care.

The factors that the court takes into consideration for permanent alimony/maintenance for the wife as follows:

• The status and position of the husband, his income, his assets and his lifestyle: The position and status have reference more to the financial than to the social position. Income and financial status are the most important factors while arriving at a justified amount to be awarded as alimony/maintenance.

• The reasonable wants of the wife: Want is not confined to what is required for keeping the claimant wife alive and providing for food only. When a minor child is living with the mother, the necessities of the child are also considered. Much emphasis is given on the reliefs prayed for by the wife by taking into consideration the status and station in life of the parties, the duration of the marriage, support and education of children, the ability of the spouse to earn and their future prospects, as also their age, health, liabilities, liabilities of the husband and the reasonable wants of the wife.

• The wife’s own income or earnings: The court will not only take into account the position of the husband but also the position and situation of the wife. In case the wife is working and drawing a handsome salary, the Court will certainly take that into consideration along with the husband’s income and then depending on the facts and circumstances of the case decide whether alimony/maintenance is to be awarded to the wife and if yes, then the amount she shall receive from the husband.
Usually, the husband is bound to maintain his wife till her lifetime. However, if the wife remarries, the husband is absolved of his responsibility and can petition the court for orders to stop the alimony.

Similarly, if there is a change in circumstances, that is, the husband is unable to maintain the wife due to a financial crisis or any other adverse situation and the wife is financially independent earning a decent salary, then the husband may petition to the court to address the changed circumstances.

The court may, taking into account the facts, evidences and circumstances prevailing at that point of time, modify, vary or rescind the order. If the spouse paying alimony/maintenance earns more income after the award for permanent alimony/maintenance has been passed in the case then the wife receiving alimony/maintenance may make a petition addressing the court about the increase in the husband’s income but she will have to prove her inability to maintain herself with the alimony already awarded by the court. The court may take into account the facts, evidences and circumstances prevailing at that point of time increase the alimony payable. However, just because his income goes up does not necessarily mean she will get more alimony.