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Family law: not every type of separation is the same

Married couples in Virginia who are unhappy with their union may want to separate prior to divorcing. They have some options, however, when it comes to separation.

One option they have is a trial separation. If two spouses live separately (even if it's in the same home) and are contemplating whether they wish to keep living separately, this is considered a trial separation. In general, a trial separation is not formally recognized by law. However, if the couple does decide to divorce, the property obtained and debts accumulated while separated will be considered marital assets and liabilities and will be treated as such during the divorce.

Once one or both spouses move out of the family home, this is known as living apart. Depending on state law, this could have an effect on their property rights. For example, if the couple lives in a state where living apart is considered to be the beginning of the divorce process, then property obtained and debts incurred during the separation may be considered separate property. However, in other states, until the divorce is filed, these assets will be considered marital property.

If a couple decides to live apart forever, this is considered a permanent separation. In most states, any property obtained or debts incurred during this separation will not be subject to property division. However, there are some exceptions. For example, if a spouse takes on some debt in order to care for their child, this debt may be treated as joint property. However, for a permanent separation to be recognized by law, one spouse must go to court in order to obtain child custody or support payments.

Finally, in a legal separation, the couple goes to court to settle property division, custody issues and support payments, but does not file for divorce. Couples may choose to do this for many personal or financial reasons, such as staying on a health insurance plan, for religious reasons or for tax reasons.

In the end, not every separation is the same, and not every separation is formally recognized by the law. However, a separation may be a good choice for some, even if it is not permanent. Those who have questions about how a separation is different from a divorce and how it might affect property division may want to seek the advice of an attorney.

Source: FindLaw, "FAQ Regarding Separation and Annulment Law," accessed Aug. 8, 2017

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