Understanding the Difference Between Divorce and Legal Separation
The process of divorce begins when one spouse files a petition for dissolution with the local court. Through mediation or counseling, most couples are able to negotiate the terms of custody, property and debt division, and support, ultimately memorializing these agreements in writing. Upon court approval, a final divorce decree is issued, effectively terminating the marriage and granting each party the freedom to move on and potentially remarry.
In comparison, a legal separation follows a similar path. The couple, or a judge, makes decisions on the same divorce-related issues and documents them in writing. Like divorce, legally separated couples have the ability to enter into contracts, sue or be sued, and buy or sell property as unmarried individuals. The primary distinction is that, at the end of a legal separation, the couple remains legally married.
When Divorce Isn’t the Answer: Exploring the Benefits of Legal Separation
There’s no one-size-fits-all approach to addressing relationship troubles. Despite the sobering statistic that nearly 50% of marriages end in divorce, not all couples rush to separate when faced with challenges. Legal separation can be a viable alternative for those who want to ensure stability and a satisfactory home environment for their children. Furthermore, it provides a means to maintain health insurance coverage and valuable tax benefits exclusively available to legally married couples (although it’s important to verify ongoing health insurance coverage during a legal separation).
In today’s world, where social media plays a significant role in relationships, some couples may wish to avoid the stigma often associated with divorce. For them, legal separation offers a way to bypass any shame they may perceive as linked to divorce. Additionally, couples who find themselves unsure about the best course of action for their marriage can find legal separation to be a reasonable compromise.
Other reasons for choosing legal separation over divorce include:
- Using separation as a trial run before finalizing a divorce.
- Utilizing legal separation to adhere to the rules and regulations of one’s church or religion.
- Holding onto the possibility of reconciliation.
- Desiring a legal agreement approved by the court to address custody and support matters while living apart.
What Does Separation Entail in Hawaii?
In Hawaii, legally separating couples must navigate a process similar to divorce. To initiate the process, at least one spouse must file a petition for separation with the local court. The petition must include essential information such as names, addresses, wedding date, separation date, and details about any minor children from the marriage. Additionally, the petitioner must meet Hawaii’s residency requirement, which mandates at least three months of residency in the state before filing for separation.
The court requires a legal reason, or grounds, for the separation. Hawaii is a no-fault divorce state, meaning the court does not require either spouse to assign blame for the breakdown of the marriage. The same principle applies to legal separation. Couples can satisfy this requirement by stating irreconcilable differences, signifying an inability to get along or reconcile.
Once the court verifies compliance with legal separation requirements, a judge will issue an order resolving issues related to property and debt division, child custody, and visitation. The judge may also mandate child support or spousal support payments, which Hawaii refers to as separate maintenance when included in a legal separation agreement.
Unlike in some states where legal separation is indefinite, in Hawaii, couples can remain legally separated for a maximum of two years. By the end of the second year, the couple must either reconcile or file for divorce. However, either spouse can initiate divorce proceedings at any time during the separation.
Can We Explore a Trial Separation?
Absolutely. Couples uncertain about pursuing a separation or divorce may find value in a trial separation. During this period, which the court does not authorize or monitor, couples can negotiate the terms of their time apart, either verbally or in writing, and attempt living separately. Many couples set a deadline for the trial separation, after which they can decide whether to reconcile, continue living apart, or proceed with a divorce.
Understanding the Significance of a Separation Agreement
In legal separation cases, a written agreement is vital and mandatory in Hawaii. Comparable to court-room shows where contracts play a pivotal role in lawsuits, legal separation agreements require documented proof.
A separation agreement, whether drafted by the court or the parties involved, is a legally binding document. It should encompass details regarding property and debt division, child custody and visitation, child support, and spousal support. Additional provisions, such as guidelines for handling disputes in the future or sharing educational or medical expenses for children, can also be included.
If both spouses collaborate on the agreement, they can submit a proposed agreement to the court. Upon determining its fairness, the judge will approve it, converting it into a court order. When spouses fail to reach an agreement, the judge will create a judgment on their behalf.
Modifying the order later requires filing a formal request, or petition, with the court. Neither spouse can make changes to the order without the approval of either the other spouse or the court.
Is Hiring an Attorney Necessary?
While Hawaii law does not mandate hiring an attorney for divorce or separation proceedings, given the ever-evolving nature of family law, consulting with an experienced divorce attorney in your area would undoubtedly be beneficial.
To explore legal separation further, visit Garrity Traina.