Marital Separation vs. Divorce: Understanding Causes, Procedures, and Impacts

If you want to end your marriage you can choose between marital separation or marital dissolution (divorce).

In this article we are going to explain to you what marital separation is, differences with divorce, how to separate, and more.

You may be wondering… aren’t separation and divorce the same thing?

The answer is no.  Separation and divorce are two different procedures .

Differences between marital separation and divorce

Through marital separation , spouses put an end to their life together, starting separate lives, but the marital bond continues to exist .

If you opt for marital separation:

  • You will not be able to contract a new marriage with a third person.
  • In case of reconciliation with your ex-spouse, during the judicial process or after the separation ruling, it will be enough for you to inform the Judge.

However, through marital dissolution or divorce the marriage bond is broken.

If you decide to divorce :

  • YES you will be able to contract a civil marriage with third parties.
  • In case of reconciliation with your ex-spouse, during the judicial process, it will be enough for you to inform the Judge.
  • If you decide to reconcile, after the divorce decree , you will have to contract a new marriage through civil means.

Nowadays, most marriages choose divorce.

Next, we explain the causes, forms and effects of marital separation.

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Causes of marital separation

Surely you have heard, on some occasion, that to separate from your spouse there must be some cause or reason.

However, these causes of marital separation were eliminated, which modifies the Civil Code and the Civil Procedure Law on separation and divorce.

So you can separate without having to justify the reason for the breakup .

Before the reform of the Civil Code , the causes of judicial separation were, among others:

  • Unjustified abandonment of the home, infidelity, slanderous or humiliating conduct, serious or repeated violations of marital duties.
  • Serious or repeated violation of duties with respect to common children or with respect to any of the spouses.
  • Alcoholism, drug addiction or mental disorders that harm coexistence.

Currently, the principle of freedom of spouses in marriage is enshrined and the causes of separation are eliminated.

  • The simple will of one of the spouses not to continue with the marriage is sufficient cause to obtain marital separation.
  • The only requirement is that three months have passed since the celebration of the marriage .

This period will not need to elapse when the existence of a risk to the life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the plaintiff spouse or the children of both or any of the members of the party is proven. marriage.

Forms of marital separation

Judicial separation

If you have minor children who are not emancipated or whose capacity has been judicially modified, you will have to opt for judicial separation.

The judicial separation of marriage may, in turn, be by mutual agreement or contentious .

Judicial separation by mutual agreement

If you agree with your spouse to begin the judicial procedure for marital separation, you will have the following advantages:

  • The judicial procedure will be shorter .
  • You can request separation by mutual agreement, both of you or one with the consent of the other .
  • Only one lawsuit is filed . The following documents will be attached to the claim:
    • General power of attorney for lawsuits. You can grant general power of attorney for lawsuits:
      • Before a Notary, through public deed.
      • Before the Lawyer of the Administration of Justice , through an appearance .
    • Marriage registration certificate. It is requested at the Civil Registry of the place where the marriage, civil or ecclesiastical, was celebrated.
    • Literal birth certificate of the children. It is requested in the Civil Registry of the place of birth of each of the children.
    • Agreement regulating separation by mutual agreement: In this document you will draft, together with your spouse, all the decisions regarding the care and custody of the children , alimony .
  • The cost will be lower , since both spouses can be represented and assisted by a single Attorney and Lawyer .
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Contentious judicial separation

If you do not reach an agreement with your spouse , you must file a lawsuit for contentious separation.

In this case, the inconveniences will be greater :

  • The judicial procedure will be longer .
  • You must file a lawsuit for contentious marital separation. You must attach, in addition to the aforementioned documents, except the regulatory agreement, the following:
    • Documents that substantiate the measures that will regulate the effects derived from the separation (child custody, visitation regime …).
    • If you request property measures, documents that prove the economic situation of the spouses or, where applicable, the children (payrolls, property titles, bank certificates…).
  • The defendant spouse will present an answer to the complaint , which will be accompanied by documents proving his or her claim.
  • The cost will be higher, since each spouse will be represented by their own Lawyer and Attorney: two Lawyers and two different Attorneys .

In both cases, marital separation will be decreed and the most appropriate measures will be adopted for the interest of the minors , if any.

Notarial separation: how is it processed?

If your children are of legal age or emancipated minors and there is an agreement with your spouse, or if there are no children in common, you can process the marital separation before a Notary .

The requirements to be able to process marital separation before a Notary are the following ( of the Civil Code ):

  1. That three months have passed since the celebration of the marriage.
  2. That there is mutual agreement of the spouses for marriage separation.
  3. The deed must contain the unequivocal will of the spouses to separate.
  4. The deed will determine the measures that will regulate the effects derived from the separation.
  5. That there are no minor children who are not emancipated or have judicially modified capacity dependent on the parents. If there are children of legal age, only in the event that the measures to be adopted affect them, they must appear before a Notary and sign with their parents.
  6. The spouses must appear personally before a Notary, their representation is not possible.
  7. The assistance of a Lawyer will be necessary , who will advise the couple and also sign the separation deed.
  8. The Notary of the last common domicile or that of the domicile or habitual residence of any of the applicants will be competent.
  9. Within the town you can choose the Notary you want.
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Effects of marital separation

Marital separation produces:

  • The suspension of the common life of married people.
  • The  cessation of the possibility of linking assets of the other spouse in the exercise of domestic power.

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