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TDC FAMILY LAW BLOG

Divorce vs. Separation

4/7/2016

1 Comment

 
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When relationships become difficult and a couple is trying to determine whether or not they wish to stay together, there are more options than simply staying married, or getting a divorce. A third option is available to help couples decide what is best for them: separation. For the purposes of this article, we when we refer to a separation, we are referring to a LEGAL separation.

What are Differences between Separation and Divorce?

A separation can be beneficial for couples who are not ready to commit to the finality of a divorce. A legal separation allows the couple to live separately without putting an end to the marriage, and have the option to reconcile their relationship in the future, whereas a divorce is the legal ending or nullification of a legal marriage.

Some other differences between divorce and separation are that in a separation, a couple can often come to an agreement on how to settle their affairs without a “judgement” from the courts. These terms can be determined before the paperwork is even filed.

Like a divorce, a separation agreement outlines the rights and responsibilities of each party regarding assets, debts, child custody, support, and visitation, etc., but the agreement is not permanent. It is important to have a ‘separation agreement,’ similar to a divorce agreement, that can protect your interests until you decide if you want to end the relationship. If you choose to pursue a divorce after separation, the courts may simply transfer the terms of your separation agreement to the divorce agreement. Therefore, it is important to ensure that you are happy with the terms.

How do I get a separation or divorce?

The process for both separation and divorce are very similar. First, both parties must meet the states residency requirements. After you have determined you are able to file in your state, you submit the necessary paperwork and file a petition with the court. You can do this by yourself or hire an attorney to do this for you.

If the separation is mutual

If your separation is a mutual agreement between you and your spouse, you will file a separation agreement with the petition that covers any pertinent issues: child custody, where each of you will live, and rules and guidelines to dating and/or having other people around your children, and the length of time the separation will be in effect. If you are filing for divorce, some of these provisions, such as dating and length of time are not relevant since there is no option for reconciliation.

If both parties agree to all provisions, each will sign and notarize the agreement, and the court clerk will file it into the court records and a judge will approve it.

If the separation is not mutual

If the separation or divorce is not mutual, you will need to have your spouse served with a petition, and they will have the option to file a response and a counter petition. If you can’t come to an agreement, then mediation is usually used to help you come to an agreement. If mediation still does not bring a resolution, a judge will determine how to settle the issues at hand.

Once a judge has reviewed everything and signed the separation agreement, it will be filed

Tracy Duell-Cazes

1 Comment
Jay Jorgenson link
10/21/2019 08:44:15 am

I like how you mention a separation is for couples who are not ready to end their marriage and may want to reconcile their relationship in the future. My aunt thinks she needs a break from her husband to think about their relationship. I'll recommend her to get a separation agreement if she wants to think about her relationship for the meanwhile.

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  • Home
  • PRACTICE AREAS
    • Divorce
    • Spousal Support
    • Child Support
    • Child Custody
    • Visitation
    • Complex High Asset Divorce
    • Contempt of Court
    • Paternity
    • Mediation Coaching
    • Alternative Dispute Resolution - Mediation and Collaborative Divorce
    • Parenting Coordination
  • Bio
    • Certified Family Law Specialist
    • What to Expect
  • Blog
  • FAQ
    • What does the area of Family Law cover?
    • Things To Do After a Divorce is Finalized
    • Annulment
    • Attorney Fee Awards in California
    • Community Property
    • Difference Between Guardianship and Adoption
    • Difference Between Marriage and Domestic Partnership
    • Difference Between Physical and Legal Custody
    • Divorce Process in California
    • Domestic Violence
    • Go to Court for Spousal or Child Support
    • Legal Grounds for Divorce in California
    • “Move Away” After Divorce
    • No Fault Divorce
    • Parenting Plan
    • Residency Requirements for a Divorce in California
    • Summary Dissolution
    • Supervised Visitation
    • The impact of the Tax Cuts and Jobs Act (TCJA) of 2017 on Divorce
    • What does it mean to have a fiduciary relationship to your spouse?
    • What is a Request for Order Hearing?
  • Resources
  • Contact