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Legalease
Legalease, Lawyer
Category: Legal
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Experience:  15 years exp all aspects of general law
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What is the difference between a legal separation and

Customer Question

what is the difference between a legal separation and divorce
Submitted: 10 months ago.
Category: Legal
Expert:  Legalease replied 9 months ago.

Hello there --

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Basically, a legal separation falls just short of a divorce in all states in the US. In a legal separation situation you can divide all assets and agree to live apart, as well as finalize all matters regarding child custody, support and visitation. However, in a legal separation situation, neither of the parties is actually free to marry again until the legal separation is turned into an actual legal divorce (the parties would return to court and finalize and update the separation agreement and turn it into a legal divorce agreement).

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A final consideration in Wisconsin is the fact that it is a community property state (39 states are Equitable Distribution States and the remaining are community property states). In a community property state, each spouse is legally responsible for the debts of the other spouse incurred during the marriage so long as the debts are for items that have to do with the marital relationship and are in support of the marital relationship. This is true even if the other party does not sign for the items purchased or financed and does not otherwise recognize the debt. Items such as the marital home or a place to live for the minor children are debts incurred as part of the marriage. While there is no legal "listing" of what debts are in furtherance of the marriage and what items can be purchased and claimed to be a debt of the marital relationship, rest assured that most creditors will pursue BOTH spouses in the marriage in a community property state (such as Wisconsin) and proceed to sue BOTH spouses in court for any credit card debts for household purchases, for car loans and for anything else that can reasonably be considered as a marital debt for the furtherance of the living requirements of either spouse and their children, whether the spouses are living together OR are living separately and apart due to the terms of a Legal Separation Agreement. In such situations, many lawyers will typically suggest that the married couple proceed right to a divorce in order to completely CUT OFF the liability and responsibility of each spouse for the other's debts that are incurred individually and alone. Obviously, if there are strong religious reasons why the couple does not want to divorce then a legal separation might be the only alternative for such a couple, but that is a matter of individual choice and the law permits them to choose a legal separation or to choose a legal divorce -- either as the first step of the inquiry.

However, under the circumstances of living in a community property state, if neither spouse wants to take the chance of ultimately being held responsible for debt of the other spouse incurred during the legal separation then it might be wiser and more prudent for the couple to proceed to a divorce (and simply stating in a newspaper announcement that you are no longer responsible for any debts incurred by your spouse because you are legally separated does not legally work to absolve the innocent spouse of the debt incurred by the other spouse during the legal separation period).

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