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Legal Separations as an Alternative to Divorce?

As everyone knows, just because you are married does not mean that you have to live together. Couples are free to live together or apart as they chose. People involved in unhappy marriages can leave the marital home even if they have not yet divorced. In fact, it is quite common for couples to live apart before a divorce. When the couple decides to live separately they may come to an agreement about who will pay for certain living expenses and who will have custody of the children. These types of informal separations are much more common than legal separations. These informal arrangements work when the parties act on the honor system, but they do not have the force of law behind them. If you want to make sure that the arrangement is legally enforceable, a legal separation is needed.

A legal separation is court ordered or the result of a formal agreement between spouses. A separation agreement can address most of the same issues that a divorce agreement could address. The agreement may provide for financial support for one spouse, custody and visitation rights for the children, and the distribution of assets or debts. The difference between a separation and a divorce is that a separation agreement does not terminate the marriage.

There are a lot of reasons why couples prefer to separate rather than divorce. There may be a waiting period for divorce, but a separation agreement can be obtained right away. Some people may object to divorce based on religious beliefs. Others may want to get a divorce, but they remain married for certain benefits. One example would be health insurance provided through your spouse’s employer. Another example is Social Security benefits. If you are married for a certain number of years, you are eligible for Social Security benefits through your spouse.

Sometimes the reason for a separation is as simple as the fact that you are in the process of getting a divorce and you need to make arrangements for the interim. This may be necessary if the parties are not getting along and are having trouble reaching an informal agreement. Even if the parties can reach an amicable agreement there may be advantages to giving the arrangement legal status. An example of this would be spousal support. This would be called “alimony” in a divorce and is called “separation maintenance” in a separation. If an agreement to provide support is given legal effect, the payments could provide a tax deduction for the person who pays and could be income for the person who receives it. This may produce tax advantages for one or both parties.

Another reason why couples may chose separation over divorce is that they want to try being separated before they finalize a divorce. They may agree that they need time apart but that they are not sure about the future. A separation agreement will allow them to manage their finances, pay living expenses, and provide for the children without ending the marriage.

Although separation agreements may be right for some couples, they are relatively uncommon because there are many disadvantages to them. In many cases negotiating a separation agreement will be as stressful and as bitter and as expensive as a divorce agreement. You will have to resolve many of the same issues, but you don’t get your marriage terminated. That means that you will go through another process later to end the marriage.

You may not have to debate all the issues over again during the divorce, but this could be a good thing or a bad thing. Separation agreements are often viewed as an expression of what works for the parties, and a court may chose to follow it even if it doesn’t reflect what you ultimately wanted in the case of a divorce. With that in mind, be careful about what you include in a separation agreement. On the other hand, if you work out a detailed and satisfactory agreement, it may save you time and money at the time of the divorce.

There is not always a requirement that a couple separate, either formally or informally, before they divorce, so deciding whether a separation agreement is right for your situation is a personal choice. Separation agreements have so many disadvantages that they should probably only be used in limited circumstances. In some limited cases, such as trying to preserve Social Security benefits for your spouse, separation agreements can be the perfect answer, but in most cases they are not the best way to meet you needs. Before you invest your time and money in a separation agreement, it may be wise to seek the advice of an attorney.

Worksheet: Preparing a Separation Agreement

To read and print out a copy of the checklist, please follow the link below.

Preparing a Separation Agreement

You can download a free copy of Adobe Acrobat Reader here

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