What is the Difference Between a Divorce and a Separation?

 Posted on April 17, 2017 in Uncategorized

' Separation' is a term that is used all the time, but what does it really mean? Sometimes clients will come to us knowing that their marriage is in trouble, and knowing that they need time apart from a spouse, but not knowing whether or not they want to pursue an actual divorce. When this happens, we present the option of a separation. Unfortunately, though a separation is not technically legally permanent, one can still be difficult to pursue, as the type of separation you choose to pursue will impact your property rights. Because of this, separating from your spouse will still require the assistance of a Dallas family law attorney.

The Four Types of Separation

Unbeknownst to most people, there are four types of separation that a couple can go through. They are:

Trial Separation

A trial separation is when a couple lives apart as a 'test' in order to decide if a divorce is really what they want. By 'lives apart,' we mean that one party stays in the family home while the other goes and stays with their parents, a friend, or in a hotel. They do not go out and rent their own apartment or buy another house. This is an important distinction to keep in mind.

Though the couple is not living together during this time period, all assets and wealth accumulated during the trial separation is still considered marital property, as this type of separation is generally not legally recognized. In the court's eyes, a trial separation is merely a bump in the couple's relationship.

Living Apart

Living apart is when the spouses no longer reside within the same dwelling. This means that one or both spouses have moved their belongings out of their shared home and into their own separate homes. Neither party has the intention of reuniting. If this is the case for you and your spouse, you may want to file for a 'partition and exchange agreement,' which allows you to divide your community property and maintain separate property while still legally married. If you fail to file for such an agreement, you may find that all debt, wealth, and assets incurred during your separation are still your spouse's, and vice versa.

In Texas, there is no statute in the Family Code regarding separation. Because of this, 'Permanent Separation' and 'Legal Separation' are not viable options for Texas residents. However, most other states allow one or both.

Permanent Separation

In a permanent separation, all assets and most debts incurred after separation are the sole responsibility of the spouse incurring them. The only debts that are joint are those incurred for certain necessities, such as childcare expenses or expenses incurred to maintain the marital home.

Legal Separation

In states that recognize legal separations, the courts proceed as they would with a regular divorce-they divide property, determine a custody arrangement, and set alimony and child support payments. However, because the couple did not actually go through with a divorce, they can 'undo' the separation whenever they wanted (if they wanted), and continue being married as if nothing ever happened. Many people see this as a perk to legal separation. Another perk is that, if the couple does choose to follow through with a divorce, the legalities have already been decided so all they really need to do is sign the paperwork.

Again, the last two options are not available in Texas.

Consult a Dallas Divorce Attorney

If you and your spouse are experiencing marital problems and need time apart, but you are worried about what 'time apart' would mean regarding custody and property, we can advise you on what legal documents you need to protect your rights. For instance, a Suits Affecting the Parent - Child Relationship (SAPCR) order allows you to define the rights and responsibilities of each parent during the separation; a 'partition and exchange agreement' allows you to protect your separate property and reduce your liability for debt incurred by your spouse during your time apart.

To consult with one a Dallas divorce attorney today, call Clark Law Group at 469-906-2266, or schedule your consultation online.

(image courtesy of Christopher Flynn)