All marriages go through crisis. However, if you are going through one serious enough to think about breaking the marriage bond, you should know that you have two options. In this article we explain what the difference is between separation and divorce . We give you all the information on both concepts so that you can make the best decision in your case.
Definition Of Divorce And Separation
To determine the difference between separation and divorce, it is best to look at each of the two definitions.
When someone says that he is separated, it means that he does not live with his partner . The romantic relationship is broken and a de facto separation has occurred. We can distinguish two types of separations :
- De Facto Separation : both spouses decide to separate and regulate each other, without the need to go to court , to determine who leaves the family home and what measures they will take in relation to the children, the family assets and the income of the unit family.
- Separation Of Law : in this case there is judicial intervention . This determines that the couple is legally separated and the court is the one who establishes the measures that govern the separation. In this case, if one of the parties breaches the agreement, the other may oblige him to comply with it through the courts . In the event that the couple reconciles and chooses to resume the marriage, it will be enough for them to submit a letter to the court to notify it. At that time, the registration of the separation in the Civil Registry is eliminated.
Being divorced, therefore, refers to a concept with a strong legal connotation. That is, divorce supposes the definitive cessation of a marriage in a legal way . Since the marriage is legally dissolved, it is registered as such in the Civil Registry.
You can consult the Civil Code – from articles 81 to 84 and 90 onwards – where divorce and separation are regulated and defined .
Common Points Between Divorce And Separation
Despite the difference between separation and divorce, they also have some points in common. One of these common points is the effects that both have and that must be established by means of a ruling or regulatory agreement . Some of these effects are:
- The economic regime of marriage . It must be determined what will be the fate of the community of property of the marriage —if there was one— and how will be the attribution of property that remains common. If a proposal on who will stay in the home is not included , its use is granted to the children and the custodial spouse. This is determined by article 96 of the Civil Code. Likewise, it must be determined how each spouse will contribute to the burdens they have in common.
- The custody of children in common . Visits, communications and stays must be regulated . You should know that to request joint custody, it is best to ask for it in the agreement or during the separation or divorce process.
- Alimony or compensatory pensions . They are established by the ruling or the regulatory agreement. The food has to do with the needs of the children, maintenance and education . The compensatory ones are established in favor of the spouse harmed by the separation or divorce.
Another common point despite the difference between separation and divorce is that in both cases the process can be interrupted or without effects . This happens if there is a reconciliation. For this, a document must be presented to the court or reconciliation takes place in front of the judge who knows the process.
Finally, both in the event of separation and divorce, there are two ways to carry out the procedure :
- By mutual agreement . This procedure is also known as an express divorce. In this case, the process will be faster, less expensive and allows more control to the parties.
- No agreement . In this case in which the spouses cannot reach an agreement, they can go to the judicial resolution. If there is no agreement, the effects of the breakdown of the marriage are determined by sentence . This makes the process more difficult and time consuming, which becomes more expensive and less predictable.
As it is best to do any of the procedures by mutual agreement, we will start from the basis that this is the case. This way it would be faster and cheaper. You should know that the procedures to carry out a legal separation and a divorce are very similar. They can basically be summarized in three points:
- Seek advice from an attorney . The first step is to choose a lawyer to handle your case.
- Negotiate the regulatory agreement. In other words, everything related to the distribution of assets, custody of children and pensions.
- Collect all the documentation you will need : marriage certificates, birth certificates, registration certificates and, in general, all those certificates that are related to the children and common properties of the spouses.
Then your lawyer will see that the papers reach the court . Once the judge admits the documentation provided, he will set a date to sign the documents . As we have seen, couples generally opt for a separation when they consider that the relationship may recover over time . Divorce, on the other hand, is the best decision if you decide to break the marriage bond permanently.
In any case, regardless of the decision you make, we recommend that you go to the procedure by mutual agreement . It is the fastest and cheapest route for both parties. Remember that you can consult any questions with your lawyer, he will be the one who can best guide you in case of separation or divorce.