Archive for the 'Separation' Category

Separation, Not Divorced

Monday, November 7th, 2016

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.

Long-Term Separation

Wednesday, March 18th, 2015

For the poorest of Americans, divorce remains a luxury item.

Long-term separations are the alternative for poor couples who cannot afford to legally end their marriages, according to research presented tot the American Sociological Association.

In the longitudinal study conducted by Ohio State University and published in August 2012, researchers surveyed more than 7,272 people on a regular basis from 1979 to 2008. Most people in the study who separated reported getting a divorce within three years of the break up; however, about 15 percent of the survey participants who separated did not get a divorce within the first 10 years of their separation. Primarily, researchers found, finances reinforce the decision to enter a long-term separation: the couples simply could not afford to divorce. The married-but-indefinitely-separated group generally had only a high school education, were black or Hispanic and had young children.

The cost of divorce was one of the most significant reasons behind couple’s decision to remain separated. Depending on the jurisdiction, even the simplest divorce generally costs at least a few hundred dollars in court fees, and any complicating issue raises the cost significantly.

Moreover, there are also financial benefits to remaining married that couples, especially those with children, hesitate to forego. These include shared health care coverage and joint tax returns, among others. In addition, older couples may not want to lose their retirement benefits or claim to their shared real estate. “Those with young children may find it difficult to support themselves and their children if they divorce,” said Zhenchao Qian, study co-author and professor of sociology. “Divorce may not protect them because their spouse may be unwilling or unable to provide financial support.”(While there are some financial benefits to long-term separation, there are also risks in remaining legally married, such as being liable for a spouse’s debt or having to share earnings from windfalls like a lottery win, which are considered marital property.)

In the past, separations were usually linked to strict divorce laws that required one spouse to prove the other did something wrong — they could have cheated or abandoned their partner. But today, as laws around “no-fault” divorces have become more lenient, researchers from the study suggested long-term separations are mostly done to avoid the financial stress of going through a divorce.

Do Trial Separations Work?

Friday, September 6th, 2013

Expert opinion seems divided about the effectiveness of a trial separation in repairing a failing marriage.
Unlike marriages and divorces, which are formal and recorded, trial separations are informal. No one knows the number and frequency of such separations. In that sense, trial separations are similar to cohabitation, which also goes unrecorded.

Moreover, no one really has a firm definition of a successful separation. For example, suppose a separated married couple reconcile – then separate and divorce two years later. Was that separation successful in extending their marriage another two years?

Some marriage therapists say that the danger of a marital separation is that it shatters the trust, or, as one put it, “breaks the bedrock of the marriage.” Like a divorce, martial separations are seldom bilateral. The spouse who is involuntarily left may find that the break, though unsought, appeals to him or her.

A Key Date to Remember - Separation

Friday, June 18th, 2010

One of the most important dates for a divorcing couple is the date they separate. Almost all couples separate for a period of time before they start the mechanics of getting a divorce, which happens when one spouse serves legal notice on the other that he or she wants a divorce.

The period between the time the couple can be considered intact, living together as man and wife, and the time the decree is handled down is called a separation. The date of separation — called the DOS — can be very important in the distribution of their assets and liabilities.

The jurisdictions use different ways of setting the DOS. In some jurisdictions, it is the date one spouse tells another that he or she wants a divorce; in others, it’s the date a spouse departs; in some, it is the date the couple agrees the marriage is over. In some jurisdictions, it is possible to legally separate and continue to live together under one roof as housemates. What is salient about the date, however, is that as of the DOS, the assets and liabilities of the spouses — what they own and what they owe — are seen in a different light and subject to distribution if they decide to divorce. This can become even more complicated because some states treat the date of separation as the classification date, after which newly earned assets cease being marital or community property and become instead separate property. The date of a permanent separation draws a line in the sand relative to property, income and debts, and the DOS can have an impact on the active and passive appreciation of assets subject to distribution.

A permanent separation happens then the couple lives apart with the intention of divorcing later. In this case, physical separation must be joined with an independent intent by at least one of the parties to divorce.

In most jurisdictions, in order to obtain a no-fault divorce a couple must live “separate and apart” for a specified period. However, some jurisdiction have held that couples can separate “under the same roof”; that is, they have made the decision to end the marriage, gone separate ways but remained domiciled in the same house, usually for economic reasons.

Depending on the jurisdiction, a brief reconciliation or even a night together for “old times” may reset the date of separation. Good legal advice is very helpful.

The word separation is used in at least two other ways in the context of divorce. A separation may be called trial or legal. In a trial separation, couples live apart to “sort out their feelings,” and later divorce or reconcile. If they reconcile, however, the date they separated has no legal importance. A legal separation, which is available in some jurisdictions, confers a different legal status on the spouses. A legal separation divides the marital estate, and the spouses live separate and apart but are still married.