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Date of Separation vs Legal Separation

by Steve Fritsch on January 21, 2013

Empty ClosetMany people that come into my office are confused about the difference between the date of separation and legal separation.  In fact, many believe they are the same thing or can be used interchangeably.  The fact of the matter is that they are completely different.  Hopefully, this article will straighten out any confusion.

Legal Separation

Legal separation is a type of proceeding for parties that do not want to be divorced but want to resolve all their property, custody and support issues.  All the things that happen in a divorce such as the division of assets and debts, determination of custody and visitation and determination of child support and spousal support occurs.  The difference is that in a legal separation there is no residency requirement for legal separation and the marital status remains and is not terminated.  In other words, if a legal separation is granted, the parties are still married.  That means, parties that obtain a judgment for legal separation cannot marry someone else.  To dissolve the marriage and return to the status of single, they must later file a divorce/dissolution.  This is easy to do but the six (6) month waiting requirement must still be met even if it took over six months to obtain a legal separation judgment or years have gone by since they obtained a judgment for legal separation.  Why would people want a legal separation?  Generally, legal separations are obtained because either they do not want their marriage terminated for religious reasons or so a spouse can maintain health insurance benefits.

Date of Separation

Date of separation is the date that the marital relationship ceased to exist.  There are factors that go into determining the date of separation but that is beyond the scope of this article.  Here, it is important to know that the significance of the date of separation is that generally, assets obtained, debts incurred and income earned after the date of separation are separate property.  In other words, if one spouse incurs credit card debt on a joint account after the date of separation, that debt goes to the party that charged on the credit card.  For this reason, the date of separation can be a very important issue and can be an issue that results in a trial.  Sometimes the date of separation can be a significant amount of money that is either gained or lost by a party.  Furthermore, the date of separation is needed in both a divorce and a legal separation since assets and debts are divided in both type of proceedings.

In sum, the date of separation and legal separation are completely different.  A legal separation is a proceeding for couples that want to divide their assets and debts and determine custody and support issues but not terminate their marriage.  The date of separation is rather a date used in both divorce and legal separation proceedings to determine when assets, debts and income are separate property.

DISCLAIMER:  The above article is for educational or informational use only and is not intended to be legal advice in any way.  If legal advice is needed, an attorney should be consulted immediately.

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