What’s the Difference Between Separation and Divorce?

Difference Between Separation and DivorceThe main difference between separation and divorce is that, when you’re separated, you are still legally married to your spouse. While separations often lead to divorce, divorce is not inevitable once a couple decides to separate. Some couples take some time off from each other to reassess the state of their marriage. Some people decide to take a new, more successful approach to their marriage after that, while others decide to make the separation permanent by filing for divorce.

First, there’s the distinction between a trial separation and a legal separation. A trial separation is when you and your spouse decide, on your own, to live apart for a time to take a break from your marriage. The separation can last as long as you want, since it has no official end date, and you and your spouse are free to divide up the bills and assets during the separation as you see fit. This works pretty well for most people, to the point where some states don’t even provide legal separation as an option.

Obtaining a legal separation requires a court order and often involves much of the same legal processes as a divorce.

Separation is a kind of middle ground between marriage and divorce. You and your spouse remain legally married and cannot remarry until you obtain a divorce. In a legal separation, the judge cannot divide marital property unless the parties agree to the division, but they can determine custody issues, child support, and alimony for the duration of the separation.

Like divorce, in order to obtain a legal separation, you have to file a petition for legal separation in the county in which you live, then serve your spouse with papers informing them of your intention to separate.

In Illinois, you are required to have lived in Illinois for at least 90 days before you can ask for a separation in Illinois. You can still request a legal separation in Illinois if your spouse lives in another state, as long as you have lived in Illinois for the minimum required time period.

If children are involved, then the children must have lived in Illinois for at least six months before an Illinois court can determine custody. If your children live with your spouse in another state, you will likely need to file for separation in the state in which they live. Be sure to look up that state’s requirements before you file or speak with a licensed attorney there.

Once you file for a legal separation, the court will begin the legal process, and that process will ultimately end with the Judge setting a hearing date, much like a divorce hearing. There you will have your opportunity to present your side of the case and the judge will make their decisions regarding custody (or parenting time, as it’s referred to in Illinois), child support, and alimony.

Don’t forget that mediation is always an option and can help the separation process. It can make the entire process go much more smoothly than if you and your spouse are forced to abide by terms laid out by a judge. Couples who mediate their separations and divorces are more likely to abide by the terms of the agreement and are less likely to end up back in court.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

The Divorce Decision Is Made, Now What Comes Next?

o-DIVORCED-WOMEN-facebookSo, you have decided your best course of action is to dissolve your marriage with your spouse? Before you do anything, it’s important to get your ducks in a row. Determine what you own, what you owe and get a good idea of each party’s annual salary.

Once you have a handle on your assets, income and debts, seek legal advice from a trusted, respected attorney in your community. Ask friends and other respected members of the community for a recommendation. An attorney will help you navigate the process and help you figure out many of the milestones and questions you will have throughout your divorce.

Separation or Divorce?

Separation and divorce can be confusing. There are different types of separation and each type has different property rights according to which separation is chosen.

Trial Separation vs. Living Separately:

A trial separation is an agreement by a couple to live apart for a period of time to determine if they will separate permanently. During this time, the assets accumulated by the couple and the debts they incur are often considered marital property. This option is not usually legally recognized.

Living apart indicates that a couple does not intend to reunite. With this option the couple no longer shares the same dwelling and changes the spouses’ property rights. Some states consider property accumulated and debts incurred while living apart to the debt of the person who incurred it. In some states, this property is considered joint until a divorce complaint is filed. Additionally, a couple must live apart for a period of time and after this period, the couple is then permitted to file for a no-fault divorce.

Legal vs. Permanent Separation:

When a court rules on the division of property, alimony, child support and custody and/or visitation, but does not grant a divorce, it is known as a legal separation. This option is not common, however, there are instances where a couple does not wish to divorce because of financial, personal or religious beliefs. This is a court order that addresses all issues that would be outlined in a divorce.

A permanent separation occurs when a couple decides to part and begins immediately when the couple begins living apart. During this time, assets received and most debts incurred are considered as separate responsibility of the person who incurred them. However, debts after separation and before divorce are usually considered joint debts if established for such necessities as providing for children or home maintenance.

Options for Divorce

Making the decision to divorce as a couple is usually best. The more issues you can work out together, means you will decide topics such as how your children will be raised, what happens to the family home, as well as the division of property. By making these decisions a couple you can save on money, time and heartache. By avoiding continued parental fighting, a couple can help their children through a tough time with a little less pain involved.

Collaborative practice is an instance in which the clients and lawyers agree that court is not an option and will voluntarily share information while working together cooperatively toward a settlement. These cases exists where each client’s lawyer is a collaborative lawyer and sign an agreement that in the event a case is not settled, each couple has to hire new litigation representation. The lack of financial incentive to go to court encourages each party to settle earlier.

Is A Lawyer Necessary?

If abuse is an issue – spousal, child, sexual or substance abuse – you should definitely hire a lawyer. It may be impossible for the abused spouse to negotiate the terms of divorce and in instances such as this a lawyer can sort out necessary steps to take to establish protection for the abused spouse and the children.

Additionally, it is sound thinking to hire a lawyer in the event your spouse is dishonest or vindictive, in which case, you may need someone who speaks in your best interest.

Lastly, if your spouse has an attorney, this is a good indication to engage your own attorney. Once again, your attorney will keep your best interests in mind and if you have children or are facing financial issues, hiring your own lawyer can provide you with a clear perspective that will help you throughout the proceedings and can speak favorably on your behalf.

A Judge’s Resolution Does Not Make Happier Consumers

The number of issues resolved at trial decreases the satisfaction with the process. The longer a case is extended, the unhappier the participants are likely to become. And no matter the result, some people are naturally unreasonable and dissatisfied because of the money they have spent to dissolve the marriage and the contested nature of divorces that go to trial.

Protect Your Rights with a Respected Attorney You Can Trust

If you have decided on divorce action, you need a legal team that can help you navigate divorce processes and guide you through all disputes. Contact the divorce lawyers at the Law Office of Barbara Sherer. We provide you with expert legal advice while making sure that the outcomes will protect you and your family.