Many people who find their marriage in trouble consider their options between filing for a legal separation also known as separate maintenance or a divorce. One of the most asked questions is what is the difference between a legal separation and a divorce? The primary difference is that the parties are still married in a legal separation. In essence you get all the headache of a divorce without ending the marriage. The Court may make findings and orders dividing and awarding property, child custody, child support alimony and temporary possession of property. Another significant difference is the Court is not bound by any residency or waiting periods. There is no requirement that the Petitioner reside in a particular county or the State for a specific period of time. Further, a Decree of Legal Separation may be granted the same day of filing of the Petition. A person may seek a legal separation on the same grounds or basis that one would for a divorce.
There are some factors that should be considered before either option is considered. One of the biggest factors is the emotional consideration. Deciding to separate or even end a marriage is a big emotional endeavor. Many people are not aware of how much of a toll a legal separation or divorce will have on them. Once should consider whether the decision being made out of anger or a perceived wrong by the spouse or even an intent to make an impression on the spouse. Whatever the case, the initiation of a legal proceeding can affect the ability to reconcile if a person is unsure.
Another factor is the different effects a legal separation and a divorce will have on the parties. A Decree of Legal Separation is not a final order unlike a Decree of Divorce. Property division in a final Decree of Divorce cannot be altered, modified or changed by the court without agreement of the parties. To the contrary, property division in a Decree of Legal Separation is not final and may be modified in any subsequent divorce proceeding between the parties. These are just some of the factors a person should consider prior to filing an action for legal separation or divorce.
If you find your self considering filing for legal separation or divorce or defending against either don’t try to go it on you own, please contact the experienced attorneys at Atkins & Markoff for legal guidance.