Is it Better to Separate or Divorce?

Couple talking about if it's better to separate or divorceIf you are experiencing serious issues with your spouse and are considering leaving, then you need to understand the different paths available to you. It comes down to you making the best decision that protects you both personally and financially. 

These aforementioned factors will be critical in determining whether you choose to separate or divorce. Not only are these two things different (and similar in some ways as well), but there are specific consequences to both. 

To ensure that you can make the best decision for you and your unique situation, we will go over the particulars for both separation and divorce. With this understanding, you can choose to pursue the proper course of action. 

Types of Separation 

A separation is like a pause button on your marriage. During this time, you can live in separate locations and lead individual, independent lives. Under the separation umbrella, there are three different types. 

  • Trial Separation – During this period, you may choose to live apart. The key component of a trial separation is that the same legal rules that governed your money and assets still apply. Money that is earned can still be considered to be jointly owned. This also extends to property. Some couples draw up informal agreements to outline how they will handle expenses (i.e., bills) and visitation with children.  However, if a divorce ensues later there is no guarantee that such an agreement will be honored by the divorce court ruling on your matter.
  • Permanent Separation – This is a separation if you have no intent on reconciliation. With the help of an attorney, you can begin the process of becoming separate entities, financially speaking upon entry of an agreement such as a post-nuptial agreement or partition agreement. Absent any such legal mechanisms for dividing up assets and debts, even if you were to live apart twenty or more years your spouse could still demand an interest in your retirement, any property purchased during the marriage, and even lottery winnings — if you are so lucky.   Only if you obtain an agreement as referenced above, will you be able to demarcate assets and debts in a manner aside from a “right and just” division of the community marital estate a court would order.
  • Legal Separation – In Texas, you cannot get a legal separation. Texas does not recognize them. However, if you understand what it is, you can seek something similar such as a partition agreement of post-nuptial agreement. In Texas, an attorney can also help you seek a temporary order, a protective order (if you are trying to safeguard you or your children from a violent spouse), or a separation agreement. These can help you get the same things that a legal separation would. But you cannot be legally separated in the state of Texas.  

Terms of Separations

Your legal status doesn’t fall under being married or divorced. In terms of division of property, alimony arrangements, child support and custody, legal separation is very similar to divorce.  Even if parents are separated and not divorced,  a court can order child support.  To the dismay of many fathers who have been separated from their wife and children, where no child support order has been sought, a court can order retroactive child support going back to the date of separation.  

If you are in the military and legally separated, there are rules related to child and spousal support. Members of the Armed Forces irrespective of the length of any separation have a duty to support their dependent spouse and children per the service member’s branch regulations. Failure to set an allotment for this purpose is subject to UCMJ enforcement.  

Why Would You Get a Legal Separation Instead of a Divorce?

Regardless of the type of separation, it is not as final as a divorce. Some people choose to be legally separate due to religious beliefs. This option allows them to live apart without having to divorce.

There is another reason why you would get a legal separation rather than a divorce: health insurance coverage. If one person is providing health insurance for the other because of a benefit from their job, then a separation agreement can extend that arrangement. You can live separately and still cover your spouse, or vice versa, on your health insurance plan. Separation agreements, temporary orders, and protective orders can help govern child visitation, financial arrangements, and property orders. 

Why Would You Choose Divorce Over Separation?

There are several reasons to choose divorce over separation. Most important, this is when you are sure that you want your marriage to end. In some situations, the cost and time associated with outlining a separation agreement can be similar to that of a divorce. Collaborative divorces are becoming more and more popular as an alternative to traditional divorce actions and require both parties to effectively reach an agreement on all core issues involved in their marriage.  This process, while ideal when the parties can work together toward a common good for themselves and their children, can often be as or more expensive than traditionally litigated divorces.  Every situation is different, but many find the divorce route to be less stressful and easier to manage than an indefinite period of separation.

Being divorced will give you the ability to remarry. 

Whether You Want Separation or Divorce, We Can Help 

Parting ways with your spouse is emotionally complex and difficult. Choosing the right attorney can simplify the challenging road ahead. This is someone who will protect your financial and personal interests. Let the family law and divorce attorneys at Amsberry Law Firm help. Call us today at 210-354-2244 or use our online form to contact our office.

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Amsberry Law Firm

The Amsberry Law Firm, founded in 1995, has helped thousands of clients overcome their unique legal challenges.

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