Divorce vs. Separation: What Are the Pros and Cons?
When you’re having trouble in your marriage and trying to figure out the solution, divorce and separation are usually the first thoughts to go through your mind. Separation is often a last-ditch effort to try to save the relationship before going through a divorce. However, there are times that filing for divorce without a separation may be the best option for you.
Separation may be ideal if you aren’t in physical danger, still like or love your partner, but you just aren’t getting along as well as you’d like. In this situation, you don’t need to go through any legal course of action, and maintain all of your assets as normal. One of you simply moves out of the home you share together while you try to heal and recapture some semblance of normal.
This option may be ideal if there has been a betrayal in the relationship but you aren’t ready to call it quits officially. Many couples go through counseling while separated and attempt to repair their broken relationship.
If all else fails and much time has passed during the separation, divorce may be the only option left – especially if one or neither of you feel like the relationship is going to ever mend itself.
Divorce is often a last resort in times of marital distress. If you are in an abusive relationship or fear for your safety in any way, divorce is the best option as soon as the problem arises. Otherwise, it’s often reserved for couples who have already undergone a period of separation.
Divorce can get very, very messy. It is one of the most stressful processes an individual can go through, too. Filing for divorce means that you will have to split your home and other assets, as well as children and income. Depending upon how long you were married and applicable state laws, one of you may also need to financially support the other for a specified period of time.
When deciding to separate, you can do so in a mutual agreement between the two of you, or file for a legal separation. If you wish to do it legally, go to your local courthouse and ask the clerk about filing the necessary paperwork with government offices.
Reasons for choosing separation over divorce can include any of the following:
- You oppose divorce for moral/religious reasons
- One of you will be eligible to receive government, health or insurance benefits from the other as long as you remain married (read the fine print, though – a legal separation may also make you ineligible for those benefits)
- There are tax benefits to you remaining married, you just don’t wish to live with each other.
- You are not eligible to file for divorce due to your state’s residency or waiting period requirements.
During your separation, it is wise to seek marriage counseling and attempt to mend the relationship, as some family courts will ask what you have done to try to stay together in the meantime. Seeking legal counsel from a divorce attorney can also help you determine how to best keep your personal assets and any other areas of concern from being part of a future legal battle with your spouse.
If you have a prenuptial agreement, this will often trump any state laws regarding separation of property in the event of a divorce. If you don’t have one, most states will either split everything 50/50 or factor in the breadwinner of the family and how to best separate your assets.
If, after separating for a time, you determine the relationship is irreconcilable, your divorce attorneys will likely suggest mediation to avoid the court deciding everything for you. Mediation is set up between your attorneys and a mediator so that the five of you together can best determine how to come to a mutually beneficial agreement on matters at hand. This can include child custody and support, alimony, division of assets and even signing over ownership and equity in all things owned between you.
Without a prenuptial agreement, virtually everything the two of you own, whether you owned it individually before you met or not, is up for grabs.
If you can’t agree on divorce terms during mediation, you must go to court and let the judge decide how things will be split. Whether it is through the court hearings or mediation, final terms are presented to the court for approval and a divorce decree is granted for your personal records. After the process you can get a divorce certificate.
After your divorce is final, remember to change your beneficiary on all insurance policies, and visit an estate attorney to determine how best to protect the assets you have now. You will also need to change your legal name and names on all accounts, and take your spouse off of any of your credit lines or cards.