By Tracy Rotharmel Shanks, Attorney
Most people thinking about ending the marriage are not well versed in the laws and procedure necessary to begin the separation or divorce process. There may be many options available to you to move forward, and those options can become overwhelming if not properly understood. This article is meant to help you understand the difference between two options that may be available to you – legal separation versus divorce.
If a married couple wants to lead separate lives while living apart, they may choose to get a legal separation. A legal separation is a court order which establishes each spouse’s legal rights concerning child custody, child support, and separation of finances and/or assets. Additionally, certain states require that a couple live separate and apart before a divorce will be granted, and a legal separation will help meet this requirement.
It is important to note that every state has their own laws on separation and divorce. Some states, like the state where I practice – Louisiana – do not even have laws allowing for a legal separation except in very limited situations. You must do your own review of the laws of your state or hire an attorney to help navigate the process to determine the procedure for your sate. This article discusses legal separation and divorce in general, and should not be construed as legal advice regarding your specific situation.
There are several differences between a divorce and a legal separation including:
Beside some of the benefits listed above, there are some other reasons why a separating couple may decide to file for legal separation instead of a divorce including:
Some people are living separately for years, even decades, before they file for divorce. Some people live separately for the duration of their lives without filing for divorce with the court. This is a “trial separation” or “permanent separation.” A trial/permanent separation is simply two people deciding to split up without officially filing paperwork with the court. The spouses will remain married and all marital implications will remain. The primary difference between a trial separation and a legal separation is that in a legal separation, the parties are able to formalize their separation and terms of their separation with a court order.
The best-case scenario in a trial separation is that the spouses decide to reconcile. However, sometimes, after several years or trial separation, one or both parties may decide to file for divorce to terminate the marriage. As a side note, a common problem when you wait many years after separating is that you may no longer know the whereabouts of your spouse, making your divorce more difficult to obtain (but not impossible).
Not all states recognize legal separation, including Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas. If you are considering a legal separation, you will need to find out what is permitted in your state.
To begin the process, you will need to file paperwork with the court to begin your legal separation and request any orders necessary such as custody, child support, spousal support/alimony, or use of property. If you and your spouse cannot agree on any of these issues, you can request that the court set a trial to make a determination on the contested issue. You should contact your local clerk of court or hire an attorney to help you access and file the proper paperwork and requests for your unique case.
Tracy Rotharmel Shanks is an attorney practicing divorce and other related matters in New Orleans, Louisiana. Her firm, Rotharmel Shanks, LLC, provides services to several parishes surrounding the Greater New Orleans Area. Rotharmel Shanks, LLC is a woman-owned and women-run law firm. Tracy is mother to two young children with a new baby on the way.