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Choosing legal separation over divorce

On Behalf of | Apr 9, 2020 | Family law

Many Delaware couples who realize their marriages are over believe that divorce is the only option available to them. 

However, not every marriage ends in a contentious battle. Depending on the circumstances, it could be worth exploring other options, such as a legal separation. 

Similarities and differences between legal separation and divorce 

According to FindLaw, a legal separation addresses many of the same issues as the divorce procedure but is less permanent. Therefore, should a couple reconcile or decide to dissolve the marriage, the terms are often already in place. 

For example, couples should reach an agreement with the following: 

  • Division of property 
  • Child support and alimony, referred to as “separation maintenance” 
  • Child custody and visitation 

Additionally, a legal separation can have an advantage over an informal “trial separation”; if there are disputes, the court could enforce spouses’ rights per the agreement. 

The key differences between a separation and a divorce lie in access to fundamental marital rights. Legally separated partners remain each other’s next-of-kin with the ability to make financial and medical decisions in the event of death or illness. They also continue to have access to their spouse’s social security and health care benefits, as well as certain rights to property and debt liability. Finally, since a separated couple is still technically married, neither of them can marry anyone else. 

Circumstances that may favor legal separation 

There are a number of reasons why couples may choose legal separation over divorce. Some religions do not allow divorce among practicing members. A separation can give couples distance while allowing them to keep within the confines of their beliefs. Separated couples could also keep financial advantages like tax and health care benefits. 

Furthermore, FindLaw lists Delaware among the states where couples could file a “no-fault” divorce. However, this requires couples to live apart for at least six months before they can go through with the dissolution. Having a legal separation status can put many of the pieces in place, so when the six months have passed, the divorce process may be much smoother.