What is the difference between a divorce and a legal separation?
In New Mexico, a couple goes through the same process and must address the same issues in a legal separation as they do in a divorce. The only difference is that after a legal separation, neither party is free to get married to someone else. A legal separation is not a “partial” divorce or a half-way step toward divorce.
A legal separation is similar to a divorce, except that the parties are technically still married and are NOT free to remarry. The property is divided, support is determined and parenting is decided. Unlike a divorce, a legal separation does NOT require a six-month waiting period. A legal separation can later be converted to a divorce, however the parties may be required to pay court filing fees again.
The process of obtaining a divorce or a legal separation is nearly identical. Grounds must be proven in court and support and custody rights may be determined. With a legal separation, however, the parties remain legally married. This may be advantageous for moral, personal or economic reasons. To obtain a legal separation, the parties must be living apart. Division of marital property such as real estate in joint tenancy, may not be made by the court; however, without the consent of the parties.
Divorce is the legal process of terminating a marriage. Once a divorce is finalized, the couple will no longer be considered married in the eyes of the law. Furthermore, once a couple is divorced, they are no longer considered to be in the family, and henceforth ineligible to receive benefits from one another including health insurance. Once a couple is divorced, they must reapply for a marriage license if they wish to rekindle their relationship.
These 2 legal products are the same in many ways – the time they take, the filing costs and legal fees, and the issues dealt with (custody, support, property division). But there are differences. In a legal separation, the parties remain married, they may resume the marital relationship, and the wife may not resume her maiden name.
