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Should I Get a Legal Divorce or A Separation Agreement?

legal divorce or separation agreement

Couples who longer wish to live together or be together often consider whether it is better to get a divorce or merely a separation agreement. The decision of whether to get a divorce versus a separation agreement can have certain implications on your future, which we will discuss in this blog post.

As a useful starting point, a legal separation is an agreement that reflects a status change between the spouses such that they are entitled to the division of marital assets, money, and property, and to have custody and support issues resolved. In states that recognize legal separations, the spouses must file a petition with the court. On the other hand, a divorce is the complete and final dissolution of the marriage. All assets, money, and property are divided; custody issues and spousal and child support claims are resolved. This, too, requires filings with the court to formally end the marriage.

There are several similarities between a divorce and a separation agreement. Both enable you and your spouse to live apart and receive that distance from one another that is typically sought. In addition to marital asset and property division, issues such as child custody and spousal and/or child support are ordered by the court under both agreements. The critical difference is that your marriage is over with a divorce. You are single and you can remarry. With a legal separation, you and your spouse remain married. You must continue to describe yourself as married on all legal documents and you cannot remarry.

Below are some important points to consider when deciding whether you should get a divorce or separation agreement:

  • If you still want to retain the right to inherit from your spouse, do not obtain a divorce since a divorce severs this right. With a legal separation agreement, the spouses are still considered married under the law and, therefore, have the legal right to inherit from one another.
  • If you merely intend on living apart from your spouse with certain entitlements and division of marital assets and property, a legal separation agreement might be preferable. If there is hope for reconciliation for the marriage, opt for a legal separation agreement.
  • If you need your marriage to be formally over, you must file for divorce. Only a divorce formally dissolves the marriage. A legal separation merely divides assets and property and addresses other issues as you and your spouse live apart; however, you remained married.
  • If you and your spouse intend on relying on one another’s employment health or medical benefit plans or intend on benefiting from the other’s social security payments, do not get a divorce. A divorce severs the right of the non-employee spouse from receiving medical and health benefits from the other spouse’s employment plan. The same holds true for social security payments, pension, and retirement funds.

The above are only a few examples of some considerations couples should ponder when making the decision of whether to obtain a divorce or separation agreement. As with all major decisions impacting your future, you should consult with an experienced divorce law attorney.

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