The terms around separation are used casually and interchangeably, so much so, that few people going through the process are clear about what they mean. Are you legally separated? Do you first have to legally separate before you get your divorce? What if you are living separately?
Let’s start with the first topic: legal separation. Legal separation is a parallel process to divorce, either you chose to start your Petition filing for legal separation or for a divorce. You do not need to do a legal separation prior. Few people would in fact benefit from filing for legal separation, but those that do, usually chose it for religious or emotional reasons. Additionally, some health insurance plans would allow the other party to remain on their spouses plan after being legally separated. However, they are other, often better, ways to handle this issue. When filing for legal separation, you would pay the court filing fee, need to exchange financial disclosures and go through all of the steps that you would for a divorce. If you completed the legal separation and later wanted a divorce, you would need to start a new. However, if you did decided to switch the process to a divorce before you finish, you can do so without having to start all over. This gives you a bit of leeway during the transition if you are unsure whether to file for legal separation or divorce.
The date of separation is another frequently confused topic. On the Petition, you are asked to fill in this date. Many people believe once this is written on the Petition, it is fixed. In fact, the Petitioner is merely claiming the date they believe this to be. This date is a gray area in the law and practically. It is not necessarily the date the Petition is filed, or the date one person moves out. It could be, but not necessarily so. The law defines it by the date that “one party knew the marriage could no longer be repaired.” As you can imagine, there can be a variety of interpretations with this. Luckily, in mediation, you typically do not need to put much weight on this one date as we usually make decisions about assets based on other factors. Many people even write ‘to be determined’ on their Petition for the date of separation. This can reduce a lot of unnecessary stress on such a potentially complicated topic.
Living separately is neither a legal separation, nor a date of separation. It could certainly influence what a court may believe your date of separation to be, but it is not the determining factor. However, colloquially, people do say ‘we are separated.’ This can be important for a couple’s own labeling as they move towards a decision about divorce, but it does not define either of the other legal terms.
It is important to keep in mind that once any of the above ‘separations’ occur, couples always have the opportunity to reconcile. In this process, you are never on a train that you cannot stop toward divorce. You both together have the ultimate power over the direction you take.