Divorce Versus Separation

Should you choose divorce or separation? I recently watched a disaster unfold.  Many of you won’t be directly affected by this disaster scenario, but you may have family member in the situation where they are in danger, and you could help.  So, it’s probably worth a couple of paragraphs in an email to you.

Divorce is ugly!  Some couples decide to just separate, and they live their separate lives.  They live in different cities.  They live with other people.  They are divorced by all indications, but rather than go through the legal pain of a divorce they are just estranged.  This divorce versus separation choice is a legal disaster situation.

In the divorce versus separation choice there are different “degrees” of separation.  There is a “we agree we will live apart and still be married.”  There is a legal separation, where the spouses agree on terms of a separation and then write up the agreement and then get a court order of separation (called legal separation).  And, then there is divorce that dissolves the marriage.

If you know you are going to get divorced, you should file for legal separation during the time you are waiting to get divorced.  This stops your legal obligations and liabilities related to your spouse. However you should not stop there. I have seen many couples just separate – no agreement, no court order (legal separation), no nothing.  If that is the situation, they are still married.  It doesn’t matter how long they have been separated.  They are married with all of marriage’s rights, privileges and obligations.  They are still “spouses.”  They are each legally responsible for many aspects of their spouse’s life.  I have seen spouses that separated fall into tragic situations.

You are obligated to support your spouse – food, shelter, clothing, medical care, etc.  Those obligations don’t go away just because you “separate.”  Medicaid will consider the resources of both spouses.  If you need medical care and can’t afford it, you may be out of luck, because your spouse is making a great living.  Or visa versa, if your spouse needs medical care, the hospitals and courts will look to you for payment.

You may be responsible for your spouse’s tax problems (you are still married).  The wages of both spouses will be considered when the kids apply for scholarships or government aid if they are handicapped.  The list goes on and on.

One or both spouses may start living with someone else.  They can live together with their new partner for years.  Then they die.  Another legal nightmare in the divorce versus separation choice begins.  The separated spouse has rights to their estate.  If no planning has been done, the separated spouse basically gets everything.  Even if planning has been done, the separated husband or wife is entitled to a large portion of the estate.  You can’t cut your spouse off in your will.

If you know somebody that is married, but separated, do them a favor and insist that they at least get a legal separation, if their state allows it.  If there is no possibility of saving the marriage, the best thing to do is get divorced.

I hope this little look at separation may save your or someone you know the disaster that awaits in “just being separated.”

By Lee R. Phillips

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