Case Study:
Separation

Facts: A wife wanted to divorce her husband who was a philanderer; but divorce was not an option for religious reasons. The husband had substantial assets, and worried that if he divorced, he would lose more than he would like including some income tax benefits.
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Separation agreements create a legal relationship between marriage and divorce.

We see legal separation as an appropriate solution for many couples.

Separation is, more often than not, the avenue of choice for people who want to get out of their marriages but not fully abandon all its institutional advantages. Divorce is, more often than not, the avenue of choice for people who want to get out of their marriages but not fully abandon the institution. For example, a couple may not want to remain together, but may want to continue some perks of marriage such as existing health insurance obtained through the other spouse or filing a joint tax return together. Couples who legally separate may also be able to continue to share other financial benefits as well as receive certain military benefits. While you and your spouse may not notice a daily life difference between separation and divorce, you may feel more confident beginning a new life under a separation agreement.

Legal Separation defined

Legal separation differs from divorce in that it continues the legal obligations a married couple otherwise has to each other. Thus, a couple deciding to legally separate will retain some shared financial benefits of marriage while leading separate lives in all other areas of their life. Keep in mind that they will still need to determine any issues arising from custody, support and property division because their respective legal obligations to each other continue unless modified by a written agreement. Divorce, in contrast, totally severs one spouse’s legal obligation to financially support the other spouse.

Reasons for separation

To obtain a judgment of separation, you will need to be able prove one of the following grounds:

  • Abandonment (actual or constructive)
  • Adultery
  • Cruel and inhuman treatment
  • Failure to properly support spouse if at all
  • Spouse's imprisonment for three or more years

There is no “no fault” option for getting a separation as there is when getting a divorce.

Moving from a Separation Decree to a Judgment of Divorce

While separated, neither person can re-marry until they take the next step and obtain a judgment of divorce. However, either spouse may convert the legal separation into a divorce without the permission of the other spouse after the separation agreement has been in place for one year and provided the spouse seeking the divorce can show that he/she meets one of the seven criteria [click here to see divorce criteria specifics] required to obtain the divorce judgment.

Let’s talk about what you want to do.

We seek to find the best solutions for clients who want a legal separation. Please contact our office to set up an appointment to learn how we can help you move your life forward in a positive direction that best suits your goals.