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What's the Difference Between Divorce and Legal Separation?

In general, a judicial decree that terminates a marriage is called a divorce, and an agreement or judicial decree that does not terminate a marriage but modifies or seeks to enforce the legal duties and obligations of a marriage is called a legal separation. The ability to file an action for separation, the terms of a separation agreement, the effect of legal separation on divorce and the rules governing legal separation proceedings vary from state to state.

Terminology

  • Divorce. A divorce, also called marital dissolution, dissolution of marriage, or absolute divorce, is a judicial decree by which a legal marriage is dissolved and the legal duties and obligations owed by one spouse to the other because of their marriage are terminated.
  • Legal separation. Legal separation, which may also be called separation, judicial separation, or separation from bed and board, depending on the circumstances, is an agreement or judicial decree by which a husband and wife remain married but no longer live together.
  • Separation order. A separation order is a judicial decree or court order which grants a married person's request for legal separation.
  • Separation agreement. A separation agreement, also called a separation order if approved by the court, is an agreement between a married couple in the process of legal separation or divorce. A separation agreement is used to establish each spouse's duties and obligations, including duties and obligations concerning financial support (child support, maintenance, or alimony), child custody, or property division.
  • Limited divorce. A limited divorce is a judicial decree by which a legal marriage is dissolved, but a limited divorce decree does not address financial support (child support, maintenance, or alimony), child custody, or property division.
  • Conversion divorce. A conversion divorce, also called a convertible divorce or a conditional divorce, refers to a divorce decree issued after the spouses have signed a separation agreement or the court has granted a spouse's request for legal separation and the spouses have lived separately for a period of time prescribed by law.

Does a legal separation prevent a divorce decree in the future?

In general, a legal separation, whether by judicial decree or agreement of the parties, will not prevent a decree of absolute divorce in the future. Additionally, an action for divorce following a separation order can be based on the same grounds as the action for legal separation, on the conduct of either spouse following the separation decree, or on different grounds or facts than the separation order.

Is legal separation required before a divorce decree can be granted?

The availability, the terms, the relationship to divorce, and the rules governing legal separation vary from state to state. Legal separation proceedings and divorce proceedings may be treated as parts of the same action for divorce, governed by the same laws, or both. In some states, living separate and apart may be grounds for divorce, and some statutes specifically empower a court to grant a divorce to couples who have lived separately pursuant to a separation order for a specific period of time. Additionally, in some states, spouses who did not obtain a separation order but have been living apart pursuant to a separation agreement, may also be entitled to a divorce, provided the terms and conditions of the spouses' separation agreement have been satisfied for a specific period of time.

What can be included in a separation agreement?

A separation agreement can establish each spouse's duties and obligations with respect to a variety of matters, including duties and obligations concerning financial support (child support, maintenance, alimony, medical expenses, and other expenses), child custody, or property division. A separation agreement can be a contract between spouses or, upon one spouse's request for legal separation, a judicial decree or court order. A court order which embodies the terms of a separation agreement is often called a separation order or a separation decree.

How will a legal separation agreement or a separation order affect my rights or obligations while my divorce is pending?

The terms of a separation agreement can affect the rights or obligations of the parties during the divorce proceedings. For example, many courts will not award alimony during the divorce proceeding if the separation order did not include an alimony provision. Similarly, if a separation agreement provides for temporary alimony (sometimes called provisional alimony, alimony pendente lite, or allowance pendente lite) while the divorce is pending, the court will not award temporary alimony.

Unless the terms of a separation agreement are "unconscionable" or there is a "substantial change in circumstances," courts are generally precluded from modifying the terms of a separation decree. Parties should clearly identify all duties and obligations and indicate if any rights in the separation agreement are intended to survive the divorce decree, supplement the divorce decree, or compliment the divorce decree. If the court finds the separation agreement "unconscionable," it may ask the parties to draft a new separation agreement or divide marital property and set child support, maintenance, and other terms pursuant to state law.

Conclusion

The availability of legal separation, the scope of a legal separation agreement, the effect of legal separation on divorce, and the rules governing legal separation proceedings vary from state to state. A divorce attorney who is knowledgeable about the laws governing divorce and legal separation in your state can work with you to ensure that your rights are protected and that your legal separation, divorce, or both, are resolved quickly and efficiently.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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