How to Choose Between Separation and Divorce
Considering divorce is never easy. Nevertheless, you must confront the fact that your marriage is no longer healthy. Once you decide to leave, you face a choice: to divorce or to separate. To choose between the two, you should consider the financial consequences of divorce. You should also seek the help of a divorce attorney, who can offer expert advice about what is your best option.
Evaluating the Relationship
Think about what you want.You need to make the right decision for you, so you should begin by taking stock of what you want from the relationship. Do you want to try and reconcile? Or do you believe that the relationship has permanently broken down? If you are unsure about permanently ending the relationship, then a trial separation might be better. You can always reconcile later on.
- You should also think about what is best for your children. People used to routinely stay married “for the children.” That may not be the best option if your marriage is full of anger or betrayal.
Identify obstacles to the relationship.What has kept your relationship from flourishing? Try to identify those obstacles. In doing so, you can assess whether or not you think that the relationship can be improved.
- For example, you may have trouble communicating with your spouse, which is a common problem in marriages.However, you could try to address it by separating temporarily but attending couples therapy together.
- Your marriage may also be stressed because of financial difficulties.Credit card debts, a large mortgage, and health care expenses are not easy to manage. Nevertheless, you may be better off trying to tackle them together by staying married.
- Some obstacles might not be easy to fix. For example, if your spouse has a drug or alcohol problem, then this is not an obstacle you control. Although you may want to help your spouse get the treatment they need, you can’t force them.
Assess your finances.Before choosing between separation and divorce, you should check how a divorce would impact your finances. Meet with an accountant or financial planner to discuss the following:
- Do you receive health insurance under your spouse’s plan? If so, you might want to stay married if you do not think you can readily obtain affordable coverage on your own.
- Are you close to receiving spousal Social Security benefits? If you have been married at least 10 years, then you can qualify for a spousal Social Security benefit even if you are divorced. If you have been married only eight years, you might want to wait a couple of years before divorcing.
- Do you benefit from filing taxes jointly? For example, you might have to file in a higher income tax bracket if you divorce.
- Do you receive military or other benefits because you are married? Can you replace that income? If you can’t replace it, you might want to separate instead of divorcing.
Consider whether the separation is permanent or temporary.In many states, you can get what is called a “legal separation,” also called “limited divorce.” Legal separation is like divorce in many respects. For example, you can get child support or alimony. A court must approve support, alimony, and child custody arrangements.
- With a legal separation, you and your spouse also agree how to divide assets and debts.A court then approves the division. With an informal separation, you and your spouse can agree how to divide debts, but you would ultimately still be liable for debts.
- To consider which type of separation is better, assess your finances. If your spouse has large debts you don’t want to be responsible for, then a legal separation could be better for you.
- You might want a legal separation if you know you will no longer live together but one of you has a religious objection to divorce.
- Unfortunately, legal separation can take almost as long as a divorce. If you are unsure about whether you want to permanently separate, then a short, informal separation might be best.
Talking with Your Spouse
Come up with a list of questions.The purpose of talking with your spouse is to find out whether he or she prefers to separate or divorce. Divorce or separation can be difficult when one spouse disagrees with the decision to split, so you need to find out your spouse’s preference. You need to break the news gently, but you also need to get his or her perspective. You should come up with a list of topics or questions to discuss:
- Do either of you have religious objections to divorce? Would your families oppose the divorce?
- Does your spouse want to divorce? Does he or she think a trial separation would help?
- Is your spouse willing to address the obstacles in your relationship during the separation? If not, can your spouse see how the relationship has broken down?
Find a time and place to talk.You should schedule a time to talk to your spouse. Tell him or her that you have something important you want to talk about and estimate how much time it will take. Say, “I would like to discuss our options for separation together.” Set up a mutually agreed time to talk.
- You should try to meet in a place where you have privacy, such as at home when the children are gone.
- If you fear your spouse’s reaction, you might be tempted to meet in a public place, figuring that your spouse will control him or herself in public. However, if you are that afraid of your spouse, then you should think about leaving first and talking by phone.
Use “I” language.As you think about how to discuss your marriage with your spouse, it is important to take responsibility for your feelings. You can do this by using “I” language.
- For example, “I am unhappy and think we should separate” signals that you are taking responsibility for your emotions. Saying “You make me miserable” is a form of blaming. You should avoid blaming your spouse as much as possible.
- On the other hand, you should always point out what acts or conditions make you feel the way you do. For example, saying “When you drink, I spend all of my time worrying” conveys that the drinking is the trigger for your emotions.
Try to remain calm during the discussion.You may feel fear or intense nervousness, but you must remain calm—even if your spouse lashes out at you. One way to remain calm is to deliberately slow down your responses. Instead of immediately snapping back with a comment, you should count to three or four, taking a deep breath, before responding.
- If you feel intense anger, then try to release that anger before sitting down to have the conversation. You could talk with a friend or express your angry thoughts in a journal.
- If your spouse is angry, you can say, “I know you are upset, but this is important. Would you like to meet in a couple days to discuss this further?” By giving your spouse some time to cool off, you can have a more productive discussion.
Realize you do not need to solve all disagreements at this point.The purpose of talking is to feel out whether or not your spouse wants to separate or divorce. If you choose an informal separation, then you do not need to decide a division of assets or a child support schedule. Even if you choose to divorce, you can meet at a later point to work out the details of the divorce.
- Try to tackle issues one at a time. For the moment, coming to an agreement about separation or divorce is sufficient. When each of you has gained some perspective on the decision to separate, then you can meet again to discuss child care and money issues.
- You can say, “I know you want to decide child support issues right now, but I need some space to think. I’ll be better able to make those decisions when I can reflect on our living situations.”
Getting Legal Help
Find a divorce lawyer.Even if you only want to separate, you should talk to a legal professional who can help you understand the consequences of divorce and separation. For example, some states require that you be separated for a certain amount of time before you can get divorced. In those states, it makes sense to have a trial separation. You can also get the attorney’s advice about which is better for you: separation or divorce.
- To find a good divorce attorney, you can ask other trusted professionals for recommendations. Ask your accountant, therapist, or doctor for a referral. Other attorneys are also a good source. If you used a real estate or personal injury lawyer for something previously, then reconnect and ask if you can get a recommendation for a divorce lawyer.
- For more tips, see Choose the Right Divorce Lawyer.
Schedule a consultation.Once you have the name of a divorce lawyer, you should call to schedule a consultation. These usually last a half hour. You should ask about the fee. Often, lawyers will charge a reduced fee for the consultation (or even meet for free). To prepare for the consultation, be sure to do the following:
Ask if your state offers legal separation.Not every state allows legal separation. You should ask the lawyer during your consultation if this is an option for you.
- The legal separation agreement is legally binding and filed with the court. It lays out the following:
- a division of assets
- a division of debts
- any alimony or child support
- child visitation schedules
- You can also informally separate, but you won’t have the legal protections of a separation agreement. For example, you could still remain liable for your spouse’s debts.
- The legal separation agreement is legally binding and filed with the court. It lays out the following:
Hire the lawyer.You might not want to pay the expenses of having a lawyer guide you through the divorce or legal separation process. Nevertheless, it is a good idea to have a lawyer during divorce or separation proceedings when any of the following is true:
- your spouse has hired a lawyer
- there has been abuse in the relationship, whether abuse of your children or of each other
- your spouse is vindictive
File for divorce or legal separation.You have the choice to take an informal, trial separation. However, if you want a legal separation or a divorce, then you must file a petition with the court asking to be granted one. Your lawyer can handle this for you.
Video: Do You Really Qualify for Divorce? | Michelle Rozen | TEDxNSU
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