Understanding the Difference Between Legal Separation and Divorce
Yes, legal separation is distinct from divorce. While divorce marks the termination of a marriage, legal separation allows couples to resolve legal issues without dissolving the marriage. In a divorce, you would need to file a motion with the court, requesting property division, custody arrangements, child support, and alimony. The court may step in to decide these matters if they remain unresolved. At the end of a divorce, both spouses are free to remarry. In contrast, legal separation does not end the marriage, but rather addresses the same legal issues.
Advantages of Legal Separation
Though less commonly known than divorce, legal separation serves as an alternative in many states. If reconciliation seems unlikely, legal separation might be the right choice for couples who don’t plan on remarrying. It preserves important benefits such as tax advantages, federal benefits, or military benefits that would be lost in a divorce. Legal separation also offers a way to:
- Ensure stability for minor children without disrupting their lives drastically
- Establish court orders for custody, visitation, and support while evaluating the future of the relationship
- Uphold religious, social, or moral beliefs
- Maintain employer-sponsored health coverage for a spouse.
Temporary Separation: A Viable Option?
Yes, temporary separation is an option, but it is not monitored by the court. Couples can agree to a trial separation, where they live separately for a specific period to reassess their marriage and determine the next steps. During this trial, couples typically reach an informal agreement on matters such as custody, visitation, use of the marital home, and financial support. At the end of the trial, the couple may reconcile, file for divorce, or proceed with a legal separation if available.
Legal Separation in West Virginia
West Virginia does not offer legal separation as a specific process. Instead, couples can file for separate maintenance, which is akin to a legal separation. Much like a divorce, separate maintenance allows the court to address the same issues, but the couple remains married. Before filing for separate maintenance, couples must meet the state’s divorce requirements. Additionally, spouses must meet residency requirements, including having had their marriage in West Virginia or one spouse being a resident for at least one year if the wedding took place in another state.
Grounds for Separate Maintenance
Similar to divorce proceedings, legal grounds must be established when seeking separate maintenance in West Virginia. The state allows couples to assert either irreconcilable differences or living separate and apart without cohabitation for one year as grounds. Couples can also file for separate maintenance if one spouse has failed to provide support or abandoned the other spouse. Fault-based grounds are also accepted.
Reaching an Agreement
The court encourages couples to work together and reach an agreement on matters such as child custody, division of property and debt, child support, and spousal support. If there are unresolved issues, a judge will intervene and make decisions accordingly.
Adhering to the Rules
It’s crucial to understand and follow the rules regarding separation in West Virginia. The state permits divorce or separation based on living separate and apart without cohabitation for at least one year. Reconciliation, no matter how brief, restarts the clock. For instance, if a couple separates on January 1, 2017, but briefly reconciles in May 2017, they cannot file for separate maintenance until May 2018.
The Importance of a Separation Agreement
Separate maintenance cases, like any legal proceedings, can be complex. To avoid miscommunication and define each spouse’s future responsibilities, the court requires a legally-binding separation agreement. This agreement covers specifics such as child custody, child support, property division, health insurance, and spousal support. It may detail whether the separation is permanent or set to expire on a specified date. Once incorporated into the final agreement, any modifications must follow a formal legal process.
If you’re unsure about how to proceed with your separate maintenance case, it’s advisable to consult an experienced family law attorney in your area.
Garrity Traina: Your Trusted Legal Partner
For more information on legal separation and family law matters, rely on the expertise and experience of Garrity Traina. Visit Garrity Traina today for professional guidance and support.