Divorce vs. Legal Separation

Rights, Duties and Obligations in Marriage

If you are married, or if you are contemplating marriage, it is important to understand the nature of a marriage relationship and it is important to understand your rights, duties and obligations in a marriage.

In a marriage, both parties have equal rights in most every state in the United States. This includes the rights to make contracts, to incur debts, to carry on business relationships, and to allocate your money to the marriage or not. Each party can purchase a house, for example, and although realtors and sellers may be advised not to go through with the deal, a spouse is legally entitled to purchase a house without consent of the other spouse.

Also, any spouse can be financially dependent on the other, and has no legal obligation to go into the world and earn money for the marriage. There may, however, be an obligation to care for children that might affect this choice.

Who Owns What in Marriage

What is critical to understand is who owns what in a marriage. This determination varies by state law and is only intended to be general discussion. States vary in their legal formulas for deciding who owns what in a marriage. This, of course, becomes important when a couple seeks to dissolve their marriage and divide their property. Some states have a body of law that is called "community property" law. A community property law typically holds that in the event of a divorce, an equal division of property is required. Most states are not community property states, and these states typically seek to divide property according to principles of fairness, which rarely means equally. Which body of law your state has can make a difference as to the answer of who owns what in your marriage.

The most overwhelmingly litigated area is dissolution of marriage or divorce. An understanding of this area is essential to anyone contemplating dissolving their marriage, since the legal issues are often skewed by the perception of people who have been involved in the legal system in this area in some manner.

Dissolution of Marriage/Divorce

Do You Want a Divorce?

One of the first questions to figure out is whether you want a divorce. It is important to realize that the legal system is not a form of counseling, and lawyers are not well equipped to help people determine whether they will need a divorce. The legal system should be considered the final act, after all reflection, analysis and counseling results have been considered. It is unwise and unrealistic to expect your lawyer to help you determine whether you should obtain a divorce. Your lawyer's role is to analyze what will happen if you obtain a divorce, and then proceed, if you are a willing client, to take all steps to obtain one.

Often, there are a number of resources available to help one determine if a divorce is the proper action to take. Many Employee Assistance Programs [EAPs] are well equipped to counsel either couples or one spouse in whether they ought to obtain a divorce. Many counselors can provide excellent resources to help spouses sort through marital difficulties in an effort to save their marriage. Likewise, many churches or other community groups can provide effective services to help in this determination.

The person inquiring about divorce should know that other than to make a calculated analysis of what will happen legally if a divorce is granted, a lawyer is best able to help after a determination to seek a divorce has been made. Similarly, the legal system ought not to be counted on to assist in reconciliation issues or prospects. One should be aware that the legal process surrounding divorce can be a bit cold and lifeless in that it can seem to aggressively push a divorce to its conclusion, yet rarely affords many opportunities to reconcile.

Indeed, if there is some doubt about the need for divorce, a couple might even attempt a separation period to help in the process. There is a concept in the law known as a Legal Separation, which we willdiscuss shortly, but this is not the type of separation that is being advocated here, since as we will see, there is little difference in most states from a divorce and a Legal Separation.

Contested vs. Uncontested Divorce.

Once you have made an informed decision that you will seek a divorce, the next question to decide is whether it will be contested or uncontested. One of the main reasons to make this determination is so that you can decide how to proceed legally, and so that you can obtain some idea of how much this process will cost. As an example, a true uncontested divorce of a couple, married for 2 years with no children, renting an apartment furnished with the belongings each brought to the marriage, and little or no savings, will cost very little in legal fees. Many would argue that an uncontested divorce could be handled without an attorney in an effective manner. We do not believe that handling a divorce without an attorney is ever a sound idea, because of the multitude of legal issues that can often arise after the divorce, but quite frankly, there are some cases in which you may not need an attorney.

In making this determination, it is important to note that most spouses, if asked early on, would claim that their divorce would be uncontested. Then all of a sudden, the issue of children, visitation rights, child support and similar issues, seem to arise without warning and create a number of contests between the spouses. The result is that many divorces that seem, on their fact to be uncontested, may be contested, and one ought to analyze the following issues to help decide what type of divorce yours will be.

Community Property States

Understanding the Community Property Concept

Community property is property that is acquired after the date of the marriage by the joint work, sacrifice and stress of both you and your spouse. Each spouse owns one half of these assets, whether they are divided, divisible or not. This ownership interest defines what each spouse owns during the marriage.

Not all property acquired after marriage is community property. If one spouse receives a gift, or regular gifts, from their family members, for example, that property is the separate property of that spouse. The designation of this property as separate [whether it is "separate" or "community" is called the character of the property] can change in certain circumstances. If the gift is used to pay for food, shelter or other marital purposes benefiting the other spouse, this previously separate property may now become community property since it may be deemed to have been "donated" to the marital community. Please note that this is a generalization and there are many factors that make up the character of the property. Courts use complicated principles and formulas in an attempt to determine the character of certain marital property.

Also, property acquired before the marriage may be either community or separate property depending upon the use of the property after the marriage. As an example, if one spouse had $40,000 in Certificates of Deposit before a marriage and the Certificates were simply renewed and the proceeds reinvested, the Certificates might likely remain separate property. However, if the Certificates were used as collateral for a marital loan that was taken out to purchase furniture for the spouses' house, this can, in some instances, arguably, change the character of the property. Such a situation might be one that must be resolved by the court system.

Agreements Defining the Character of Property

Premarital agreements, often called prenuptial agreements in some states, can help to specify before a marriage what the character of each piece of property owned by each spouse will be. While these agreements sometimes make for nice neat resolutions of property disputes upon divorce, the idea of planning for divorce sometimes prevents couples from entering into these agreements. Also, what is often not discussed about a prenuptial agreement is that once made, it can be modified by the conduct of the spouses or spouse during the marriage. An example may illustrate this point. Assume that a spouse has $100,000 in stocks before being married. The couple enters into a valid prenuptial agreement in which it is specified that the stocks are the separate property of the one spouse and any dividends or interest from these stocks will be reinvested and remain the separate property of the spouse also.

After five (5) years of marriage, the spouse decides to stop the reinvestment of the dividends and interest and designates these to be deposited each month in the couple's checking account to be used to purchase food and shelter. This practice continues for five more years. What is the character of the stock now? What is the character of the dividends and interest now? First, the stock would likely remain the separate property of the spouse pursuant to the agreement. However, it is entirely possible that the other spouse could argue that the dividends and interest income became a community asset. The final determination would depend on other factors during the marriage, but it is possible that the prenuptial agreement could be considered to be modified by the subsequent conduct of the parties during the marriage.

These principles may serve as an introduction to the community property laws. Your state may not have these, but if it does these principles might help you better understand the need to seek the services of an attorney both before and during a marriage should questions arise concerning the nature of property.

Non-Community Property States


A large majority of states do not have a community property characterization scheme of marital asset ownership. In these states, there are many laws which determine who owns which assets in a marriage. The following is a very general and brief statement about ownership of assets in a marriage. Should this become a problem or an issue in your case, it is recommended that each spouse seek the counsel of an attorney, in advance of taking any action with respect to incurring any debts, purchasing any property or disposing of any assets.

In general, all property in the marriage is considered to be of joint ownership. But, upon dissolution, the general rule is that any property you brought to the marriage remains yours. Again, this is a generalization and certain factors can affect the ownership of this property.

Marital Debts

Marital debts can sometimes be considered to be the separate debt of one spouse, depending upon a number of factors in a marriage. As a general rule, items purchased for the necessity of the marriage are considered to be jointly owned. Thus, both spouses are responsible for these debts.

In many states, a spouse does not have the right to run up a large amount of bills for non-marriage related expenses, and to claim the other spouse is responsible for these debts, or at least one-half of them. Of course, your course of conduct may alter this rule. That is, if you have previously given your spouse the right to incur debts in your name, he/she may be deemed by a court to be acting with similar authority with respect to any new debts.

Interestingly, a spouse is not responsible for the contractual obligations of the other spouse, unless they are for the benefit of items necessary for the family or the home. Needless to say, interpretations of this concept can lead to wildly different understandings of the word "necessary." Each state may have court cases in which disputes similar to those spouses may have already been litigated. Lawyers can research these in an effort to provide assistance or guidance should you and your spouse have a different opinion of whether a certain contract might be necessary for the marriage. There are, however, no easy results and the outcome may vary depending upon your state and its courts.

Legal Separation - Compared

Many questions arise about whether a couple can obtain a legal separation instead of a divorce, and what the differences may be in those two proceedings. Generally, separations are informal, that is, the couple simply decides to live on their own under some informal agreement with respect to property, alimony and/or child support and custody. These are often the most problematic from a legal standpoint, because there is usually no written agreement about any of the items such as support of the spouses, property ownership, child support or custody. Thus, when something goes wrong, it is often difficult to determine a proper resolution. However, many couples decide on this type of arrangement as it offers the best prospects for reconciliation.

Legal Separations, however, are legal proceedings, where the couple petitions the court to declare them separated legally, but does not dissolve the marriage. Almost all of the proceedings performed in a divorce are present and the time and money invested by the couple is almost identical, depending upon state laws.

Legal Separation is becoming less frequent since many states have determined that formal separations are to be treated as if they were divorces in reality. Thus, the separation agreement or process is required which involves court or legal filings, waiting periods and usually agreements addressing divisive issues. The result is that there is really no advantage to a formal Legal Separation, except in some complicated tax or related cases.

Generally, couples with specific reasons for doing so (usually related to high profile marriages or wealthy) obtain Legal Separations.

Physical Separation

Separation between married couples is not a legal or formal process, and is different from a formal Legal Separation. Couples who decide to separate their living conditions or other marital duties and responsibilities should exercise much caution, since they are treated as if they are still married for all intents and purposes, by entities or persons such as creditors, banks, employers, insurance companies, credit card companies and other such entities. This means that while you and your spouse may consider yourselves separated, and even in some cases not married, the law does not. Thus, your spouse's credit card debts will likely still be considered your own. Your spouse would be able to withdraw funds from your marital bank accounts, and you must continue to pay bills, even if your spouse is the beneficiary of the bill, or face serious credit and/or foreclosure problems.

While you can make an agreement with your spouse about the liability for these types of issues during your separation, you should know that you will be forced to sue your spouse, if they breach the contract, and you will not escape the liability to the creditor. For example, assume you and spouse separate and you make an agreement that he cannot charge items to the credit card in both of your names. After one month, he charges a diamond necklace to the credit card. Are you obligated to pay if your husband does not? Yes, unless you have taken significant steps to notify the credit card company your husband cannot use the card, which still may not be enough to free you from the obligation. Can you sue your husband? Yes, but that would likely be a waste of money.

If in your separation, you canceled all joint accounts and/or credit cards, you would have some protection. The problem, however, is that to adequately protect yourself from your spouse's debts or obligations, divorce may be the only real protection.

Again, this section is not designed to help you create an airtight separation. Instead, it is designed to alert you to potential legal issues, in the event you and your spouse just decided to be separated for a time. You should consult the attorney available to you in your legal plan for a full analysis of how to protect yourself, if you decide to separate.

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