Divorce vs. Separation: Key Differences and Considerations
The end is seen coming . The situation is unsustainable and you are wondering how to end your marital relationship. Or, maybe the divorce papers are on your table and you think there is still a solution.
If you have to face a possible breakup of your relationship, it is necessary that before making a decision, you and your spouse consider which option is best for you: divorce or separation ?
The difference is bigger than you may think.
In this article we explain the differences between marital separation and divorce .
We are going to analyze, on the one hand, the points in common that divorce and separation have , and on the other, the consequences that make them very different paths . The first is a much broader group than the second, but the conclusions of the latter are decisive for the future.
Similarities between separation and divorce
Termination of cohabitation
The main point in common between separation and divorce is that both formulas imply the cessation of cohabitation .
Spouses cannot live under the same roof, and the revocation of the powers and consents granted to each other will also apply.
Of course, not living together implies many more things that make up the common characteristics of separation and divorce.
Liquidation of the economic regime
In both cases, the matrimonial property regime is dissolved, so the assets will be liquidated and a distribution will be made , which will be determined by the economic formula by which the marriage will be governed.
It is true that at this point there are small nuances between divorce and separation, but the effects are the same in both cases .
In the event that the economic regime of the marriage is community property , the division of properties will be more complex, while if it is a matter of separation of assets the calculations are easier.
In both situations , it is advisable to have a lawyer specializing in Family Law to be able to defend your rights.
It must be taken into account that there are private assets and community assets , so when the inventory is made, one must consider which ones are of one type or another to know where to direct the distribution.
The relationship with children
The third great point in common is related to common children in a separation or divorce .
It is no secret that when a marital breakdown occurs, children are collateral victims , and Justice aims to find the best solution for their interests, because they are the ones left most unprotected, especially if they are minors, always seeking to preserve the interest . superior of the minor .
Therefore, both spouses must establish :
- Type of custody and custody
- Visiting schedule
- Any other aspect related to the care and attention of minors
In the event that there is no agreement between the parties, the judge will be in charge of organizing this section.
It must be remembered that the person in charge of custody will generally be the one who has the right to use the family home , with the other spouse being the one obliged to leave.
If it is shared custody, there are many options because it is a more flexible regime that better adapts to the needs of parents and descendants .
In both separation and divorce by mutual agreement, it is necessary that all the information and agreements be reflected in the regulatory agreement that must be presented to a judge to receive approval.
This is the key document and, although it can be modified in the future , it sets the tone for what the relationship between the parties will be like following their breakup , in addition to recording the economic distribution and compensatory pensions , if any.
Separation or divorce: mutual agreement or contentious?
Something that separation and divorce also share is the fact of how that breakup is reached. There are two ways: by mutual agreement or by judicial means (also called contentious ).
The ideal, according to specialist lawyers, is to do it by mutual agreement .
It is not only faster but also cheaper , less harmful for the parties, and less traumatic if there are minors in common.
What it comes down to is that spouses have the ability to sit down and talk about the terms of the breakup. And be able to reach an agreement , which they will present to the court so that the authority approves it.
At this point, it can be very useful to go to a family mediation procedure to achieve an understanding that allows for an amicable separation or divorce.
If this understanding is not reached, litigation will be resorted to where a judge will establish all the aspects related to the dissolution or separation of that marriage.
In addition to the fact that the contentious route involves a higher economic cost and a longer process , another important disadvantage is that it will be in the hands of the judge to determine the measures, running the risk that the resolution will not satisfy any of the parties .
In both cases of separation and divorce, in order to request a marriage breakup, three months must have elapsed since the celebration of that marriage , except in extreme cases such as those in which there is fear for the life or physical or moral integrity of the spouse. who requests it or of the common sons and daughters.
Main difference between separation and divorce
As we said, there are fewer differences than commonalities, but those that exist are decisive.
Marital separation leaves the door open to a possible reconciliation while divorce represents a definitive break. We explain how.
Marital separation does not end the marriage
Separation does not end the marriage, and both spouses will continue to be considered husband and wife .
Separated, but with that active link, which implies that none of them will be able to remarry , neither among themselves nor with third parties.
A separation makes the procedures easier, from all points of view (also the economic one, since the company will be created again, although under a regime of separation of assets unless otherwise established), to be together again.
Divorce ends the marriage permanently
In the case of divorce, the dissolution of the marriage is total and both parties are free to rebuild their lives with whoever they wish .
There is even the possibility that these two people decide to get back together, but to formalize it they will have to celebrate a new marriage. That is, unlike what happens with marital separation, there is no option to “undo” the divorce.
What do the figures say?
If we look at the official data collected by the National Institute of Statistics, we can see that the majority of marital breakdowns in USA are caused by divorce .
Since 2012, around 100,000 divorces have been registered per year while the number of separations is much lower, around 4,000 per year.
Among popular beliefs is that separation is the previous step towards divorce . Which is not entirely true , although it can be the ideal option for couples who are not entirely clear at first. In fact, the number of divorces in which there was prior separation is around 9,000 a year.
Choose the option that best suits your interests
Now that you know what separation and divorce consist of, what their differences and similarities are, it is time to think about what is best for you, your spouse, and your children, if any .
Whatever decision you make, it is necessary to have a specialist lawyer who will be the person who will help you carry out the process, ensuring your rights, and who can also advise you on one way or another to carry out a marital breakup.
Get advice from lawyers specializing in family law
If you still have doubts, or if you are already clear about what option you want to formalize your breakup, the most important thing is that you have the advice of a lawyer specializing in family law .
An expert lawyer will be able to better defend your rights and interests in the negotiation with the opposing party or, if necessary, with representation in the judicial procedure.
Keep in mind that the effects of a separation or divorce in most cases will have repercussions in the future , both financial and child custody, if any. That is why it is so important to do things as best as possible from the beginning.