Separation vs. Divorce

Learn what it can mean to be "separated."

Many people are confused about what is meant by "separated" — and it's no wonder, given that there are four different kinds of separations. However, how a couple is separated can have important affects on property ownership:

Trial separation.

When a couple lives apart for a test period, to decide whether or not to separate permanently, it's called a trial separation. Even if the spouses don't get back together, the assets they accumulate and debts they incur during the trial period are usually considered marital property. This type of separation is usually not legally recognized, but is instead a specific period in a couple's relationship.

Living apart.

Spouses who no longer reside in the same dwelling are said to be living apart. In New York State, property is joint unless and until a divorce complaint is filed in court or the parties are separated pursuant to a separation agreement or a separation decree.

Permanent separation.

When a couple decides to permanently split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. However, a permanent separation is different from a legal separation. In New York State, all assets received and most debts incurred after a legal separation is the separate property or responsibility of the spouse incurring them. Therefore, if you are ready to become financially independent from your spouse, you should consult with an attorney and figure out your options and when your income and liabilities will be considered separate rather than marital. Again, a couple's decision to permanently separate may not be considered a legal one unless one party files for legal separation instead of divorce.

Legal separation.

A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody, and visitation — but does not grant a divorce. This isn't very common, but there are situations where spouses don't want to divorce for religious, financial, or personal reasons, but do want the certainty of a court order that says they're separated and addresses all the same issues that would be decided in a divorce.

Republished and edited with permission – Nolo.com