A married couple who separates can have this separation ratified in court and has, for this, the choice between the procedure of divorce and that of legal separation. However, what is the difference between these two procedures? Why choose one over the other?

The Differences

Legal separation or divorce: what are the differences? First of all, legal separation should not be confused with de facto separation, which is characterized simply by the absence of common life without the intervention of justice. What essentially distinguishes divorce from legal separation is that divorce permanently ends the marriage, while legal separation does not break the marital bond. In other words, when one is legally separated, one remains married. However, there are other significant differences  between these two procedures:

Unlike divorce, a legal separation does not put an end to the duty of fidelity, which means that it is impossible to remarry, to settle, or even to maintain a romantic relationship, except to commit adultery. In terms of inheritance, then, the legally separated spouse retains his status as heir, unlike the divorced spouse. In addition, legal separation entails the application of the separation of property regime at the matrimonial level, even if the spouses have married without a marriage contract.

The Similarities

The duty of assistance subsists in the event of legal separation, which means that the payment of alimony can be ordered. What are the similarities between these two procedures? The procedure as such is the same in the event of divorce and legal separation:

  • These procedures both lead to the disappearance of the duty of cohabitation and the attribution of the marital home to one or the other of the spouses.
  • In both cases, the judge can award damages to the spouse who has suffered particular damage.
  • Legal separation like divorce puts an end to the joint taxation of the spouses and their tax solidarity

Legal separation may be of interest to spouses who are hostile to the very principle of divorce, often for religious reasons, but in practice is little used today.

The Potential to Work it Out

You can choose to enter into a collaborative process, but it could take time and both parties have to agree with the resolution. At the end of the collaborative process, there are two possible hypotheses namely:

  • Either you manage to reach an agreement: in this case, the parties to the family dispute may request the approval of the agreement before the family court judge. It would be specified that an approval does not allow the judge to modify the agreement, but only aims to verify that the compromise found does not disproportionately harm one of the parties or a child for example.
  • Either you are unable to reach an agreement and have to solicit the assistance of the family court judge. Nevertheless, the lawyers may have the obligation to withdraw from your defense. You may have to find new counsel for the rest of the legal proceedings.

Seek Counsel

You have to make the choice that is right for the entire family, especially when children are involved. If you are unable to find a way to mediate your differences, and you have decided on divorce, the next best thing is to choose a family law attorney to guide you through the process.