A separation isn't the same as a divorce. Separation means that you are living apart from your spouse, but you’re still legally married until you get a judgment of divorce from a court (even if you already have a judgment of separation). However, generally a separation does affect the financial responsibilities between you and your spouse before the divorce is final. There are three different types of separation. In most states, only one (legal separation) changes your legal status—but all three of them have the potential to affect your legal rights.
If you and your spouse need a break from the relationship, you may choose to live apart while you decide between divorce or reconciliation. While you’re separated, the same legal rules apply as when you are married, in terms of ownership of property. For example, money you earn and property you buy are likely to still be considered jointly owned by you and your spouse, depending on your state’s rules about property ownership.
If you and your spouse are hoping to reconcile, it’s a good idea to write an informal agreement about some issues that will surely come up. For example, you will need to decide whether or not you will continue to share a joint bank account or credit cards and how you’ll budget your spending, which of you will stay in the family home, how expenses will be shared, and the like. If you have kids, you’ll need to decide how and when each of you will spend time with them. If you both decide there’s no going back, your trial separation turns into a permanent one. That’s discussed next.
When you live apart from your spouse without intending to reconcile but you are not divorced, you are considered permanently separated. In some states, living apart can change property rights between spouses—if you don’t intend to get back together, then assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns. Because it can significantly affect how your property and money are divided, the date of permanent separation is sometimes hotly contested in a divorce. For example, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you didn’t discuss divorce until the month had passed, and neither of you intended to divorce before then, the date of separation is somewhat questionable. If during that month your spouse received a big bonus at work, who it belongs to is also arguable.
If you move out of the house and don’t expect any long-term reconciliation with your spouse, there may be consequences to going out or spending the night together just for old times’ sake. If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse’s financial actions during a period when you thought you were responsible only for yourself. Once you’re separated and have made basic agreements about your joint assets and debts, you don’t have to divorce right away. Some people stay married because of insurance—and inertia can be a factor, too.
In some (not all) states, you can get a legal separation by filing a request in family court. Being legally separated is a different legal status from being divorced or married—you’re no longer married, but you’re not divorced either, and you can’t remarry. But the court’s order granting the legal separation includes orders about property division, alimony, and child custody and support, just as a divorce would.
People choose legal separation instead of divorce because of religious beliefs, a desire to keep the family together legally for the sake of children, the need for one spouse to keep the health insurance benefits that would be lost with a divorce, or simple aversion to divorcing despite the desire to live separate lives. Some people live very happily in a state of legal separation for many years. (If you’re considering a legal separation instead of divorce so that you can keep insurance benefits, check the insurance plan before making the decision. Some consider a legal separation the same as a divorce for purposes of terminating health benefits.)
Excerpted from Nolo’s Essential Guide to Divorce, by Emily Doskow.