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How a legal separation differs from divorce

Some North Carolina couples who are splitting up might decide they want a legal separation instead of a divorce. A couple might also want a legal separation while they decide whether or not they want to go through with a divorce. A legal separation has many of the same elements as a divorce including child custody and visitation. Child and spousal support may also be involved, but when there is a legal separation instead of a divorce, they are sometimes referred to as separation maintenance.

One aspect of a legal separation that might differ from divorce is property division. If a legal separation is temporary, property division is generally not involved, and property and debt acquired during this time is usually considered to be shared marital property.

However, if the couple is living apart and decide to separate permanently, property acquired by either person thereafter will no longer be considered shared marital property. If debts are acquired for something that benefits the family during this time, such as for child care, these will probably be treated as belonging to both individuals.

A person who is considering separation or divorce might want to talk to an attorney about these elements. For example, the person may be concerned about how property will be divided or how child custody will be decided. An attorney may be able to explain the options. The couple may be able to negotiate an agreement for joint custody, or they may agree that one parent should be the custodial parent. If the couple is unable to reach an agreement about child custody and property division, litigation may be necessary. This can be more costly and time-consuming than negotiation but may be necessary if one spouse will not cooperate or if there are issues such as domestic violence.

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