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Would being separated be grounds for a divorce?

By Spodek Law Group | July 27, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 08:21 pm

Would Being Separated Be Grounds for a Divorce?

Ending a marriage is one of the most difficult decisions a person can make. While every situation is unique, there are some common reasons why couples may choose to separate or divorce. This article will explore whether being separated could be grounds for divorce, looking at the legal implications as well as the personal and financial considerations involved.

A legal separation is when a married couple decides to live apart but remains legally married. To obtain a legal separation, you must go through the court to get approval and establish legally binding agreements about issues like:

  • Child custody and support
  • Division of property
  • Spousal support

These details would be outlined in a separation agreement, which is a legal contract between spouses similar to a divorce decree.

Remaining legally married means you and your spouse still have certain legal rights and responsibilities towards each other. For example, you may still be on your spouse’s health insurance plan or be able to make medical decisions for them. You also remain each other’s next of kin.

However, you live separate lives – financially and personally. You typically live in different homes and are free to date other people. Any new debts you take on are your responsibility alone.

How Does Separation Differ from Divorce?

While being separated means you and your spouse live apart, you are still legally married. Divorce is the full legal dissolution of a marriage .Some key differences between separation and divorce include:

  • Legal ties: Divorce completely severs the legal ties between spouses, whereas separation leaves them legally married.
  • Remarriage: You must get a divorce if you want to remarry someone else. You cannot legally remarry while separated.
  • Reconciliation: Separation can more easily be reversed if you repair the relationship. But divorce is permanent.
  • Benefits: You may lose benefits like insurance coverage after a divorce but maintain certain benefits if separated.
  • Taxes: Married couples can file jointly for tax benefits even when separated but must file separately after divorcing.
  • Property: Divorce requires division of all marital property. Separated couples can choose to maintain joint property.


Reasons a Couple Might Separate Before Divorcing

There are several reasons why a couple may decide to legally separate before getting a divorce:

  • They want time to see if reconciliation is possible
  • Their religious beliefs do not allow divorce
  • They want to maintain health insurance or other benefits
  • They have young children and want to postpone divorce
  • They need to reach the 10-year marriage mark to receive Social Security or military benefits

Separating first can also give couples time to come to agreements on important issues before starting the divorce process. This can save time and money in court since you already have a separation agreement in place.However, if you are certain you want to end the marriage, it likely makes more sense to file for divorce directly rather than spending time and money to separate first.

The Impact of Separation on Children

For couples with children, the impact of separating versus divorcing is an important consideration. Living in two homes instead of one can be difficult on kids. Some parents choose to delay divorce in hopes of minimizing disruption to their children’s lives.However, research shows that children are often less affected by whether their parents separate or divorce and more influenced by how they handle it. Maintaining a cooperative co-parenting relationship and minimal conflict is key to reducing the stress on children.Many experts recommend being open and honest with kids about separation or divorce in an age-appropriate way. Encouraging counseling can also help them process the change.

Financial Implications of Separation vs. Divorce

Finances play a major role in deciding between separation and divorce. While separated, you and your spouse remain financially tied to any joint debts or assets acquired during marriage.With divorce, all marital property must be divided. The court will determine who gets what based on factors like length of marriage and earning ability.Other financial impacts include:

  • Spousal support: Courts can order one spouse to pay the other after a divorce. Separated couples can agree to support terms.
  • Taxes: Married couples can file jointly for tax benefits. Divorced spouses must file separately.
  • Estate planning: Your separated spouse still inherits your assets if you die without a will. Divorce removes this right.
  • Retirement accounts: Divorce may allow you to remove an ex-spouse from accounts like your 401(k). Separation does not.

There are many personal and legal factors to weigh when deciding between separation and divorce. Here are some questions to ask yourself:

  • Do I want to reconcile with my spouse at some point? Separation leaves that door open.
  • Do I need to meet a 10-year marriage requirement to receive benefits?
  • Will I lose health insurance or other benefits if I divorce now?
  • Do my religious beliefs prohibit divorce?
  • Do we share major joint assets that would require division in a divorce?
  • Do I need time to reach custody and financial agreements out of court?
  • Am I ready and willing to permanently end the marriage?

Answering these questions can provide clarity on whether initiating a legal separation or filing for divorce makes the most sense for your unique situation.

Finding the Right Path Forward

Ending a marriage is an incredibly difficult and emotional process. Whether separation or divorce is the right first step will depend on your individual circumstances.Seeking counsel from professionals like lawyers, therapists and financial advisors can be invaluable when evaluating your options. Leaning on close friends and family for support is also crucial.If you ultimately decide to separate or divorce, remember to be kind to yourself. Allow yourself time to grieve the loss of the relationship. But also look ahead to starting the next chapter of your life.With patience and compassion, you can make it through this challenging transition and come out stronger on the other side.


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