Legal Separation or Divorce – What is the Difference?

If you have been considering a divorce, you probably have seen the term “legal separation.” It is not a term familiar to a lot of people. What does it mean? Is it just leaving your spouse, or is it something more?

In New Mexico, a legal separation (known formally as a “proceeding for division of property, disposition of children or alimony”) is an alternative to divorce (or, as it is officially known, a “dissolution of marriage”). A court decree in a legal separation proceeding will decide most of the same issues that would be decided in a divorce action. Marital property will be divided, child custody will be determined, support of any minor children will be ordered, and one spouse may be ordered to pay spousal support (alimony) to the other. Any property that you acquire after a separation is ordered will be your separate property. It will not be community property, and your spouse will not be entitled to claim an interest in it.

You also will not be liable for any debts your spouse incurs after the separation. Most debts incurred or contracted while a couple is married are community debts, and both spouses are liable for them. A separation decree means you are not liable for future debts. You may still be liable for all or part of the debts that came up during your marriage, but going forward, your spouse cannot saddle you with more.

Although a separation decree may have a lot of the same effects as a divorce, there are some important differences. The biggest difference is that you are still married to your spouse, even if the legal relationship has changed. This will mean that you will not be able to remarry unless you get a divorce.

The proceedings for a separation are also a little different from divorce proceedings. In order to bring a divorce action, one spouse has to have lived in New Mexico for six months before the action starts. There is no length of residency requirement for a legal separation.

There are also different legal grounds for divorce and separation. A divorce decree will be granted after a court finding of incompatibility, cruel and inhuman treatment, adultery, or abandonment. A separation decree is granted when a couple has “permanently separated and no longer live together or cohabit together as husband and wife.” The separation action can’t be started when a couple is still living together.

There are several reasons a couple might choose to get a separation rather than a divorce:

  • They have religious or moral objections to divorce;
  • Neither spouse has lived in New Mexico for six months; or
  • The couple is unsure if they want a divorce, or think there is a chance they could reconcile after time apart.

We can provide you with the resources to answer all of your questions about legal separation and divorce. You will be able to decide which option is the best for you and get everything you need to take you through the process from start to finish.

This post is also available in: Spanish