Separation and Divorce

Living Apart: Different From Legal Separation


A married couple’s relationship is going downhill. One person moves out. If they live apart, are they automatically legally separated?

Not a Legal Separation

If the spouses are living apart, this doesn’t mean that they are legally separated. Living apart and legal separation are two different things.

What’s the difference between living apart and legal separation? To be legally separated, the spouses must have a court decision. This decision settles the fallout of the separation in an official way. For example, the decision can settle these issues:

Separated but Still Married

Even if the spouses are living apart, they are still considered married. This has important consequences:

  • they aren’t legally allowed to marry someone else
  • if one doesn’t have a will, the other spouse automatically inherits from the one without a will
  • they have a legal duty to be faithful to one another and to help each other
  • they might be responsible for some of the other spouse’s debts

Problems if No Court Decision

Some spouses stop living together and settle things on their own without getting a court decision. They don’t want to go to court to make their separation and its consequences official.

However, problems can arise after several years of living apart if one spouse wants to do one of these things:

  • change the unofficial agreement because she thinks it’s unfair
  • change the unofficial agreement because it no longer fits her situation or her children’s situation
  • make the agreement official because the other spouse has stopped following it

Spouses who are separated shouldn’t wait too long before making their breakup official by asking for a legal separation or a divorce. Making if official ensures that

  • they won’t lose their rights,
  • they won’t lose money, and
  • they will be treated fairly.

To avoid problems, it’s a good idea to consult a lawyer or notary.