Yes. Although both legal processes change your marital status, only an absolute (traditional) divorce terminates your marriage and gives you the freedom to remarry. A legal separation allows a couple to live independent lives, but neither spouse is free to remarry unless the court converts the separation into a divorce.
Divorce and separation do share some things in common. For example, both allow couples to create a final resolution to important legal questions, like child custody and support, property and debt division, and alimony.
Like most family issues, ending a relationship is a highly emotional and personal decision. You can conduct a quick internet search and find a hundred advice sites that tell you why you should choose one over the other, but in the end, the only opinions that matter are those of you and your spouse.
Some common reasons couples choose legal separation instead of divorce include:
The process for a legal separation in the District of Columbia (D.C.) begins when one spouse files a motion (request) with the court. In your application, you must include the date of your marriage and separation, and a statement indicating that at least one spouse has lived in the state for a minimum of six months.
Your motion must allege a legal reason—or grounds—for your request. In D.C. there are only two acceptable reasons for a separation:
The difference between the two grounds for legal separation depends on whether the spouses agreed to live separate and apart. If one spouse chose to leave without the consent or approval of the other, it would take at least one year of living apart before either spouse can ask the court for a legal separation. On the other hand, if both spouses agreed to the break-up, either can immediately file for a legal separation.
During the process, the couple will negotiate the terms of the separation, which can include child custody and support, property division and allocation of debt, and alimony. If either spouse objects to a specific condition, the court will evaluate the case and decide for you.
Once the judge grants your request, you’re free to live a life independent from your spouse. If you reconcile, you can ask the court at any time to revoke the legal separation.
On the contrary, if either spouse would like an absolute divorce, the court will convert the case if you can demonstrate:
Yes. In D.C., the court considers a couple to be separate apart even if they live in the same home as long as they can prove to the judge that they have resided in separate bedrooms and have not carried on as a married couple.
You’ll need to demonstrate that you’ve lived as strangers, meaning you didn’t attend social gatherings or events together and you didn’t cohabitate (have sexual relations) while living under the same roof.
Whether you file a legal document with the court or testify in front of a judge, any statement you make during the legal separation process must be truthful. If you tell the court that you and your spouse are voluntarily living apart, but the judge discovers that the arrangement wasn’t mutual, the court can dismiss your case and require you to refile.
Legal separations cost time and money, and any delay for your untruths may end up causing you a bigger headache than it's worth.
A trial separation is a method commonly used by couples who are on the fence about what legal procedure to use. The trial enables families to test the waters of separation and reassess the relationship before asking the court for intervention. In many cases, the couple can orally agree to the terms, like an expiration date, but if you’d like a more formal arrangement, you can put it in writing.
A trial separation isn’t a legally binding court process, so in the end, the couple must choose to reconcile, move forward with a legal separation, or file for divorce.
Like most legal matters, it’s vital that you have a written agreement to reference after the court finalizes your case. Couples can negotiate the terms of the separation, or the judge can create an order based on the facts of the case.
A separation agreement is a legally binding document that contains the critical legal issues relating to the separation. Every agreement should include provisions relating to the following:
It depends. While no law requires you to hire an attorney, the legal process for separation (or divorce) is complicated, and the rules are always changing. Hiring an attorney is the best way to make sure you understand the requirements and impacts of a legal separation.