Difference between divorce and legal separation.
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As a general rule, divorce terminates the marriage, legal separation does not. For spouses who have religious or other objections to divorce but find continued cohabitation untenable, a legal separation offers the spouses separate civil lives but maintains the marriage.
Divorce Law & Legal Definition
A divorce is the legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint for divorce (or dissolution in some states) by one party.There are two types of divorce-- fault and no-fault. A fault divorce is a judicial termination of a marriage based on marital misconduct or other statutory cause requiring proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce. All states now have adopted some form of no-fault divorce; although some such as New York, restrict the availability of no-fault divorce and retain fault divorce generally. A no-fault divorce is one in which neither party is required to prove fault, and one party must allege and testify only that either irretrievable breakdown of the marriage or irreconcilable differences between the parties makes termination of the marriage appropriate. Many states continue to offer a separation agreement or decree, under which the right to cohabitation is terminated but the marriage is not dissolved and the marital status of the parties is unaltered.
State law governs divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a certain period of time, which varies by state. The most common issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a period of time. In most states, the legal process of the divorce procedures take some time, to allow for a chance of reconciliation. The divorce decree is a court order that states the rights and responsibilities of the divorced parties, including the basic information regarding the divorce, case number, parties, date of divorce, and terms the parties have agreed upon.
Sexual relations with anyone other than your spouse is still a crime in many states, even if the married couple is seeking a divorce, or has obtained a legal separation. The judge has a great deal of discretion in custody cases and in awarding or restricting visitation rights. Extramarital sexual relations before divorce may be used as evidence of marital misconduct during the marriage. Also, cohabitation with another person may be a factor in reducing support payments received.
Separation Agreement Law & Legal Definition
A separation agreement (sometimes called a Pendente Lite Order) is a formal agreement between you and your spouse. It provides for support and other financial conditions until the divorce is final. If it is not in the form of a court order the agreement is not binding. If you and your spouse agree you probably won't have to appear in court, as your attorney will take the signed agreement to the judge who will sign it thereby making it a court order.
A separation agreement usually contains, among others, the following provisions:
* If there are children, how much child support is to be paid and the terms of payment.
* A visitation schedule.
* How much alimony (if any) is to be paid.
* Responsibility for the joint bills.
* Who will remain in the marital residence and who will pay for its upkeep.
* How to split any tax refund and tax deductions.
If a legally separated couple later reconciles, local law varies on the effect of the separation agreement. In some cases, the agreement may be automatically voided, in other cases the couple may sign a document declaring the agreement to be void, destroy the separation agreement, or request the judge to declare the agreement void.
Separate Maintenance Law & Legal Definition
Separate maintenance is a decree requiring a spouse to make payments for the support or maintenance of the other spouse under a separation agreement. A judgment ordering separate maintenance is governed by state laws, which vary by state. For example, in Michigan, which doesn't have legal separation statutes, the order grants a divorce from bed and board but not from the bonds of matrimony. Marital property will be divided and the court may order spousal support. Separate maintenance payments are included as gross income of the recipient for federal tax purposes.