Clients often ask what the difference is between a legal separation and a divorce. While the court process for both is similar, the legal consequences of each are significantly different. Below are some of the differences between these two judgments:
- Legal Definition and Consequences of Divorce: Divorce is defined as the dissolution of the marriage relationship. Once a judgment of divorce is entered, parties are free to remarry another individual after six months.
- Legal Definition and Consequences of Legal Separation: Legal separation does not terminate a marriage. Legally separated couples may reconcile without having to remarry.
- Grounds for Divorce and Legal Separation: The grounds for legal separation are that the marriage is “broken.” Both parties must state that the marriage is broken for a court to grant legal separation. For a divorce, the court must find that the marriage is “irretrievably broken.”
- Property Division: Upon judgment of annulment, divorce, or legal separation, the court shall divide the parties’ property and transfer the title accordingly. Property acquired by a spouse by gift remains the separate property of that spouse and is usually not subject to division upon divorce.
- Jurisdictional Requirements: For legal separation, a court has personal jurisdiction over an individual after that person has been a resident for at least 30 days in the Wisconsin county in which the action is brought. For divorce, the court must have personal jurisdiction over one spouse, who must have lived in Wisconsin for six months and in the county of filing for 30 days.
There are several reasons why someone might choose to remain legally married, even if they are separated.
- The marriage may remain intact to continue to receive health insurance benefits from the other spouse. However, some policies may make exceptions for separated couples.
- The parties may choose to stay married for tax or citizenship reasons.
- Religious beliefs may prohibit spouses from seeking a divorce, but not a legal separation.
- Spouses may hope that there is a chance that they will be able to reconcile their marriage and get back together.
- A legal separation severs the financial relationship between the parties, where they can no longer create marital debt or create marital property.
There are also reasons why a party may proceed with a divorce instead of a separation.
- They would like to marry someone else and end their current marriage.
- The chance of reconciliation is very low, and it may be more appealing to eliminate the stress and uncertainty by obtaining a final divorce.
- If there are other complicating factors involved such as substance abuse or violence, it may be in the party’s best interest to file for a divorce to end the marriage.
Even if the parties are legally separated, they may convert that legal separation into a divorce by filing a motion with the court. Choosing which path to take requires some thoughtful analysis and a determination of what goals each spouse has, and whether or not they are truly interested in ending their marriage at this point, or keeping the door open for possible reconciliation.
If you have any questions on these topics our skilled family law attorneys would be happy to meet with you.