Separation, Not Divorced

Sometimes, (usually when economic pressures force them) unhappy couples choose to live separately rather than divorce. During a sharp recession (such as the one that began in 2008 and seems to linger still), many couples find they cannot afford a divorce when it means selling off real estate (in a deflated market), paying off debts (with money they don’t have) and hiring attorneys (who will leave them poorer).

Of course, while some couples separate in hopes of reconciliation after coming to terms with the reasons their marriage might be falling apart, many couples today live apart without divorcing.

The 50 jurisdictions and the District of Colombia treat living apart and separate falls in different rules in different states, but in most states an informal separation that is not court ordered has no real legal status and for all purposes, the couple is still legally married. A trial separation, when the couple lives apart while they decide whether or not to get a divorce, is usually not recognized by the court; but a husband and wife who are living apart cannot assume they have no further responsibility to a marriage or each other. Just living apart does not give the spouses the same rights they would enjoy in a divorce.

Simply living apart temporarily has no legally binding effect on ownership of assets and debts or any other legal aspect of the marriage. When a couple separates without formal recognition of the court, the separation can be considered a permanent separation in some jurisdictions that now require a period of living apart before the spouses file for an uncontested divorce. In those cases, living in separate residences for a long period of continuous time without any effort made toward reconciliation demonstrates the intent to end the marriage. In most cases the property and debts that are created when a couple is living apart are the responsibility of the person who accumulated or incurred it unless the court orders joint responsibility.

In a legal separation, the court determines property and support issues but does not issue a formal divorce decree. Not all jurisdictions permit legal separations. Depending on the state, a legal separation binds both spouses to terms and conditions, and it stipulates each spouse’s specific duties about childcare, visitation and support. A period of separation often allows a couple time to get their affairs in order. When they do not want to save the marriage, the legal separation period becomes a preliminary for an inevitable divorce. The absence of a divorce decree in a legal separation means that neither spouse can remarry unless a formal divorce is completed.

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