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Legal Separation and Divorce

In the United States, statistics indicate that half of all marriages will end up in a divorce or legal separation. Often people do not differentiate between divorce and legal separation - both refer to a situation where a couple decides not to live together any more. However, being separated is much different than being divorced.

What does legal separation mean?

Legal separation generally refers to a court order which acknowledges that a couple is no longer living together; the order also resolves all issues regarding the marriage. A legal separation generally means that both parties reached an agreement concerning child custody, child visitation, child support, spousal support or alimony, distribution of property, attorney's fees, and personal conduct. However, in a legal separation both parties remain married to each other. Indeed, a spouse who is legally separated is not allowed to marry another person.

Divorce, also known as a decree of dissolution of marriage, is also a court order, but it is for the purpose of dissolving or terminating a marriage. Both parties are allowed to marry another person following a divorce, since they have returned to an unmarried status. An annulment differs from a divorce in that it simply cancels a marriage.

What are the benefits of legal separation?

Legal separation often takes place when both parties prefer to stay married for religious reasons. That's why legal separation is often coined "Catholic legal separation," as it preserves the religious marriage. Legal separation is not only pursued for religious reasons, but also for tax reasons. Unlike divorce, a legally separated non-custodial parent may be able to deduct spousal support payments from his or her income taxes. Also, some spouses prefer not to wait for the duration of the state statutory waiting period for termination of marital status. That's one of the reasons that a legal separation is often pursued - to set the parameters for dealing with one another while living separate and apart and keeping the marital status, while leaving an opportunity for a reunion or resumption of marriage. However, being legally separated is not a requirement for filing for divorce. In other words, a legal separation is not a prerequisite to the dissolution of a marriage or divorce.

If you are considering a legal separation, divorce, or dissolution of marriage, you would be wise to consult an attorney who can give you legal advice about your particular situation.


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