Knowing what the difference is with separation vs. divorce can be difficult. Add the fact that there are different kinds of legal separation, including permanent separation, and the whole separation vs. divorce thing becomes cloudier. Are you married or not? And if you’re separated permanently, why aren’t you divorced?
If you’re wondering about the differences, the Law Offices of Rick D. Banks can help. Let’s take a look at each kind of separation, and how they may apply to you.
What Is Trial Separation?
Trial separation occurs when you and your spouse decide to try living apart for a while. It’s a test to see if you’re better off alone, or would prefer to stay together. Whether or not you reunite, your assets and debts remain marital property when this occurs. Most California courts don’t legally recognize trial separation.
What Is “Living Apart”?
Here’s where the “separation vs. divorce” concept starts getting hazy. Before January 1, 2017, spouses had to reside in different locations to be “living apart.” Now, however, the law considers a couple to be living “separately and apart” even if they live under the same roof while preparing to divorce.
Either way, living apart changes your property rights in California. Unlike some states, any debts incurred or assets acquired while living apart count as separate property or debt, equivalent to what you came into the marriage with or that you received by bequest or gift. This will make dividing assets less complicated when you and your spouse actually divorce.
What Is Permanent Separation?
If you don’t reunite after a trial separation, you and your spouse typically split up permanently. The law refers to this as “permanent separation.” This can also occur if you both throw in the towel and decide not to undergo trial separation. In this case, as soon as you start living apart, you’re permanently separated. Under the separation vs. divorce rules, it counts as separation because you may never divorce.
In California, as in most states, your assets and debts immediately become separate property and responsibilities. Certain necessities, like maintaining your marital home or taking care of your children, will remain joint debts during the period between permanent separation and divorce.
Note that your permanent separation may not be official unless you file for legal separation or divorce. When you do, a state of permanent separation will probably make it easier to divide your assets.
What Is Legal Separation?
This is a situation where you file for separation officially, whereupon the state provides for property division, spousal and child support, child custody, and visitation — but you do not divorce. While rare, this is one way to live apart when religious beliefs, personal reasons, or financial issues preclude a normal divorce, but you want a court order that treats you as divorced. The court may refer to spousal and child support as “separate maintenance” in such a case. Your lawyer, or your spouse’s, may file a temporary motion of pendente lite, or “pending the litigation,” while you and your spouse (and your representation) determine the awards in an upcoming divorce judgment.
Learn More About Separation vs. Divorce
If you’re about to separate and confused about the differences between the different types of separation or about the difference between separation vs. divorce, contact the Law Office of Rick D. Banks for a free consultation. We’ll be happy to help and may be able to represent you in your legal proceedings.