The divorce rate in the United States is currently 2.9 per 1,000 population.
Divorce has become an accepted part of our culture and is not looked down upon like it was in the past. Still, divorce is not always the best course of action. Legal separation can be a solid alternative to formal divorce proceedings.
It’s important to stay informed about your options throughout the entire process. Choosing divorce vs legal separation can have lasting effects on your family, and proceedings often become emotional.
Reducing legal costs and wasted time is critical while you figure out what is best for your family. Plus, you don’t want to be misled or taken advantage of while you are in an emotional state.
No two families are the same, meaning no two divorce or legal separation cases are the same. Divorce law can be difficult to navigate. It’s essential to hire an experienced divorce lawyer to aid you.
Keep reading to find out the key differences between divorce vs legal separation and determine which one might fit your situation the best.
Divorce vs Legal Separation
What’s the difference? While the two are similar, there are key differences that separate them, as well as pros and cons of each.
It is important to note that this refers to the legal process of separating while still married. This is different than a trial separation a couple may elect to undergo on their own. Rather, this is a formal legal process on record.
Legal separation means that you are still married in the eyes of the law, but living apart. The court dictates the rights and duties of the couple like in divorce cases. Yet, the marriage remains intact.
Legal separation is not as common as divorce. But, it can prove helpful when there are personal or financial issues at play that would make a divorce even more complicated.
One of the benefits of legal separation is that spouses can continue to receive joint benefits like health care and social security. These might be unavailable in a divorce.
They can also continue to make medical and financial decisions for their spouse as next-of-kin. Property rights and the responsibility of debts still stand, though a judge can divide them if appropriate.
Legal separation might be a better option if you are unsure about the divorce process. This path provides the space you need without the pressure of permanent legal action.
Divorce cases are similar to legal separation but differ in that the marriage is completely dissolved.
Each state has different laws that govern divorce proceedings. In South Carolina, there are two categories of grounds for divorce.
On one hand, there is a no-fault divorce that stems from one year of continuous separation. The marriage did not work out, and the parties have not lived together for at least a year. The important distinction is that neither party admits fault in the marriage breakdown.
The other four categories are fault grounds, meaning someone is legally deemed at fault. These include physical abuse, habitual drunkenness/drug use, adultery, or desertion for more than a year.
Both divorce and legal separation carry their own set of legal processes. They will vary by state. Either way, it is critical to hire an experienced divorce attorney who can advise you of your rights and responsibilities by law.
Once a married couple decides to undergo legal separation, the process begins in a similar fashion to divorce. Family court determines child custody and visitation, and division of assets may occur.
Additionally, the couple must no longer live under the same roof. With a legal separation, the court will also determine a “separation maintenance” which is like alimony/child support.
The court may decide to divide property, but this depends on the circumstances. Other financial setups may remain intact, including insurance and other benefits.
A divorce begins when one party files a Summons and Complaint in family court.
From there, the court will split up property, assets, and debts acquired during the marriage. It’s important to note that these are divided fairly, which does not necessarily mean equally.
The deciding factors in how the court splits up property can vary, including:
- Length of marriage
- Age at time of marriage/divorce
- Marital misconduct
- Contribution from each spouse
- Value of property
- Custody of children
- Support obligations from previous marriages/children
- Any liens on the property
There are also some things considered non-marital property that is usually not divided. This includes property owned by one spouse prior to marriage, as well as inheritances.
The court will also determine the custody of children. This is very complicated and is determined case-by-case. Some contributing factors include:
- Child temperament/development
- Children’s preferences
- Behavior of parents
- Cultural backgrounds
- Location of parents
- Parental involvement
- Stability of residences
After a custody decision is reached, parents discuss a visitation schedule. If they cannot agree to one, the court will step in and set up a legally binding agreement. If either parent violates these terms, they could be held in contempt of court.
Child support is determined by a state-set formula. The court may also award alimony, paid either periodically or in a lump sum.
As with any legal decision, there are long-term ramifications that come into play. Whether you decide divorce vs legal separation, there are wide-ranging consequences to consider.
One of the most important reasons to opt for legal separation rather than divorce is the ease of reconciliation. If you decide to resume the marriage, there is no need to remarry.
That said, if you do ultimately decide to dissolve the marriage, it is a much simpler process than starting from scratch.
When a divorce is complete, the marriage is totally dissolved. If you decide to reconcile and want to resume marriage, you must remarry all over again.
There are other long-term headaches you may not even consider. For example, if you want to travel overseas with your kids after a divorce, there are extra steps required.
Making the Best Decision for Your Family
The legal system is complex and confusing, and each state has its own set of laws governing divorce proceedings as well as legal separation. This is why it is critical to hire an experienced lawyer to assist you throughout the process.
From deciding between divorce vs legal separation to carrying out legal action, a trusted divorce lawyer will guide you through.
Contact an experienced attorney serving in the Greenville, SC area today to determine the best path for your family.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.