Comprehensive Guide to Marital Separation with Children: Procedures, Differences, and Considerations

Separation is a path that couples who wish to stop living together, but not permanently dissolve their marriage, can choose. In this post we are going to specifically address the main aspects of marital separation with children.

Is it common to separate nowadays?

Currently, marital separation is a legal figure that is practically out of use. Most couples who decide to break up their relationship opt for divorce , thus definitively putting an end to their marital bond.

However, separation remains an option. Furthermore, it is a good solution for couples who are going through a major crisis and therefore want to live separately, but are not completely clear that they want to end their relationship.

For cases like these, separation is an appropriate solution, since it is necessary to regulate certain aspects that will govern the relationship of the spouses for the moment. Something especially important when you have children together .

What differences exist between separation and divorce?

The main difference is that divorce definitively puts an end to the marital relationship , while separation does not dissolve the bond but rather involves the interruption of the marital relationship and the coexistence of the spouses.

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Thus, spouses who have divorced can remarry other people, and even each other in the event of reconciliation. On the other hand, separated spouses cannot remarry since they are still married, and if they reconcile, they only have to communicate it in Court to annul the separation.

On the other hand, we must emphasize that there is no difference between separation and divorce as far as children are concerned. In both cases, it will be necessary to agree which of the spouses will have custody (or if they will have joint custody ), and whether one of them will have to pay child support to the children.

What is the procedure to separate while having children?

When separating, two procedures can be followed, whether you have children together or not:

Separate by mutual agreement

When spouses separate by mutual agreement, they both file the lawsuit , or one of them with the consent of the other . Said lawsuit contains a proposed regulatory agreement that contains the measures that the spouses wish to govern in their separation. That is, the attribution of custody of the children, if alimony is to be established in their favor, the use of the family home , etc.

The Judge has to approve this proposal , which will be supervised by the Public Prosecutor’s Office if there are children. And once the agreement proposal is approved, the measures adopted therein begin to be applied.

In separation by mutual agreement there is no trial , since the parties agree on the measures they want to be applied to their separation. For this reason, they can also share a lawyer and attorney when filing the claim.

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Separate contentiously

When it is not possible for the spouses to agree on the terms of their separation, this must occur in a contentious manner. In this case, one of the two spouses files a request for separation , which the other must respond to within a period of 20 business days.

If the defendant spouse wants to propose his or her own measures in the response to the complaint (that is, counterclaim), he or she has a period of 10 days to do so, as long as they are issues on which the Judge does not have to rule ex officio, or if These are causes that would lead to the annulment of the marriage , or if the defendant spouse wants a divorce instead of separation.

A hearing will be held  to which the spouses have to attend with their lawyers, so that the evidence can be taken (the evidence that cannot be taken at the trial will be done in the following 30 days).

If the children are already 12 years of age or older , they will be heard if it is deemed appropriate ex officio, or if requested by the Public Prosecutor’s Office, the parties, members of the judicial technical team or the children themselves. There is also the possibility that they will be heard at a younger age.

Finally, the Judge will resolve through a ruling that may be appealed within a period of 20 days from its notification.

We must highlight that in the case of contentious separation, the spouses usually have their own lawyer and attorney , as they have different interests.

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What difference is there in separation with minor or adult children?

When there are minor children in common during the separation, it must always be determined who will have their care and custody , the regime of stay and visits where appropriate, and whether one of the parents will have to pay them alimony.

On the other hand, when there are children of legal age, a guardianship and custody regime is not determined , since the children are no longer subject to parental authority . Therefore, a stay and visit regime is not established either.

However, alimony can be established for children even if they are of legal age . This is done when said children have not yet achieved economic independence, for reasons not attributable to them.

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