A divorce legally puts an end to your marriage and enables you to separate and legally divide your assets and finances from your partner’s.
In contrast, during a legal separation you draft together a settlement agreement that sets out the rights and responsibilities that will apply to each spouse while they are living apart. During this time you are still legally married despite choosing to live separately. It is worth noting that this is different to a decree of judicial separation which can be arranged through the family courts.
What is a Separation Agreement or Deed of Separation?
These are both essentially the same document which set out an agreement made between the spouses. It can address a multitude of issues such as: custody and residency arrangements for your children; visitation; maintenance and the division of assets and debts, including the matrimonial home and mortgage.
An agreement of this kind is not a court order and the courts are not involved in its preparation. Instead, this is an informal settlement agreement which you will both feel morally bound to keep but there is no legal penalty for failing to follow all the terms. If you later apply for a divorce, the separation agreement can be shown to the court for its opinion on whether there was an agreement and whether the agreement has been broken so it can be persuasive.
What is the advantage of a Legal Separation to Divorce?
There are advantages to having an agreement in place which include the following:
- It allows you time to live apart and decide if divorce is what you truly want without making it final straight away;
- Unlike during a divorce where all benefits are terminated you can retain medical benefits and certain other benefits for you spouse and family;
- If your religious beliefs conflict with the idea of divorce, you are able to live separately and retain your marital status for religious beliefs.
- If you are a military spouse, you may wish to remain married for 10 years so that you can take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act. Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse;
- It will allow you to make arrangements for the children without a costly or drawn out court battle or involve third parties if you can agree a way forward
How do you apply for a Legal Separation?
The same issues are considered during separation proceedings as they are in the divorce process.
When preparing to draft the separation agreement, each party must produce full and frank financial disclosure, showing documentary evidence of their assets and liabilities. Each party exchanges this information with the other. The main difference is that when you are not applying for a divorce or judicial separation you do not have to appear in court but rather you only need to agree terms usually through a solicitor.
Essentials to consider upon separating:
- If you are moving out, be sure your name is removed from any rental leases. If your spouse does not pay the rent, you will not want to be held accountable.
- Have your mail forward to your new address or post office box.
- Keep a copy of all addresses, phone numbers and account information on mortgages, bank accounts and credit accounts. Have your name removed from any accounts that you no longer want to be responsible.
- Put a freeze on all joint bank and credit accounts if you cannot get your spouse to agree to have your name removed. Until the accounts are frozen you are still legally responsible if they are in both your name and your spouse's name.
- It is not unusual for a divorce judgment to award separated spouses the personal property that is in their own possession. If there are important belongings that you leave with your spouse upon separation, you should to specify in your separation agreement that those things come to you if you should divorce.
- If you elect to have a legal separation instead of divorce so that you can maintain insurance cover, check the policy language carefully. Some insurance companies include language, which will cause coverage to lapse in the event of a legal separation. Be sure you are still covered - do not take it for granted.
- Consult with an accountant concerning pension plans and retirement benefits. You need to make sure you that you meet all of the necessary legal requirements to maintain you interest in any pension accounts or retirement benefits.
Can we apply for Divorce at a later stage?
A legal separation usually protects your financial interests until you make a decision either way to file for divorce or not. The separation agreement will set a precedent for the financial aspect of divorce. If you decide to proceed with divorce after a period of separation and your case goes to court, a judge will give heavy weight to the terms of a separation agreement. That is because he will assume that since you were satisfied with the legal separation agreement at the time of separation and it has been happily followed by both parties for the entire time, then the agreement should carry over to the final divorce settlement agreement. For that reason, it is important that you come to a separation agreement you can live with long term.
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