Divorce or separation? This is what you need to know

The end is seen to come. The situation is unsustainable and you are wondering how to end your marriage relationship. Or, the divorce papers may be on your table and you think there is still a solution.

If you have to face a possible dissolution of your relationship it is necessary before making a decision you and your spouse will planteéis which option you should: ¿ divorce or  separation ?

The difference is bigger than you may think.

We are going to analyze on the one hand the common points that divorce and separation have, and on the other the consequences that make them very different paths . The first is a much larger group than the second, but the latter’s conclusions are decisive for the future.

In common: cessation of coexistence, economic regime and relationship with children

Cessation of coexistence

The main point in common between separation and divorce is that both formulas imply the cessation of coexistence . Spouses cannot live under the same roof, and the revocation of powers and consents granted to each other will also apply.

Of course. not living together implies many more things that make up the common characteristics of separation and divorce.

Liquidation of the economic regime

In both cases, the matrimonial property regime is diluted, so the assets will be liquidated and a distribution will be made , which will be determined by the economic formula that governs the marriage.

It is true that at this point there are small nuances between divorce and separation, but the effects are the same in both cases .

In the event that the economic regime of marriage was that of property, the division of properties will be more complex, while in the case of separation of assets the accounts are easier. 

In both situations, it is advisable to have a lawyer specialized in Family Law to guarantee your rights.

It should be borne in mind that there are proprietary and community assets , so when the inventory is made, it is necessary to consider which are of both types to know where to direct the distribution.

The relationship with the children

The third great point in common is related to the children in common in a separation or divorce .

It is no secret that when a marriage breakdown occurs, the descendants are collateral victims , and the Justice tries to defend them because they are the most unprotected, especially if they are minors.

Therefore, both spouses must establish :

  • Type of custody and custody
  • Visiting schedule
  • Alimony
  • Any other aspect related to the care and attention of minors

In the event that there is no agreement between the parties, the judge will be in charge of organizing this section.

It must be remembered that whoever is responsible for custody will be the one who has the right to occupy the family home , and the other spouse will be forced to leave.

If it is a shared custody, there are many options because it is a more flexible regime and that is better adapted to the needs of parents and descendants.

Both in separation and divorce it is necessary that all the information and agreements are reflected in the regulatory agreement that must be presented before a judge to receive their approval.

This is the key document and, although it may be modified in the future , it sets the tone for what the relationship between the parties will be as a result of their rupture , in addition to recording the economic distribution and compensatory pensions , if any.

Separation or divorce: mutually agreed or contentious?

Something that separation and divorce also share is the fact of how this break is reached. There are two ways: by mutual agreement or by judicial means (also called contentious ).

Mutual agreement

The ideal, according to specialist lawyers, is to do it by mutual agreement .

It is not only faster but also cheaper , less damaging to the parties, and less traumatic if there are minors in common.

What it is about is that the spouses have the capacity to sit down and talk, accompanied by their lawyers, about the conditions of the rupture. And to be able to reach an agreement , which they will present before the court so that the authority approves it.

Contentious way

In the case of not reaching that understanding, the contentious route will be used where a judge will establish all the aspects related to the dissolution or separation of that marriage.

In both cases, in order to request the marriage break, three months must be completed from the celebration of that marriage , except in extreme cases such as those in which there is fear for the life or physical or moral integrity of the spouse who requests it or of the sons and daughters in common.

The big difference: final end point

As we said, there are fewer differences than common points, but those that exist are decisive.

The separation leaves the door open to a possible reconciliation while the divorce supposes a definitive rupture. We explain how.

Separation does not end the marriage, and both spouses will continue to be considered husband and wife .

Separated, but with that active bond, which implies that none of them will be able to remarry , neither among themselves nor with third parties. A separation makes the procedures easier, from all points of view (also the economic one, since society will be created again, although in a system of separation of assets unless otherwise established), to be together again.

That does not happen with divorce. Here for dissolution of marriage is complete and both parties are free to rebuild their lives with whomever they choose . There is even the possibility that these two people decide to be together again, but to formalize it they will have to celebrate a new marriage.

What do the figures say?

If we go to the official data collected by the National Statistics Institute, it can be verified that the majority of marital breakdowns in Spain are made through divorce .

Since 2012, there have been around 100,000 divorces a year, while the number of separations is much lower, over 5,000 a year.

Among popular beliefs is that separation is the previous step toward divorce . Which is not entirely true , although it may be the ideal option for couples who are not entirely clear at first. In fact, the number of divorces in which there was a previous separation is around 9,000 a year.

Now that you know what separation and divorce consists of, what their differences and similarities are, it is time to think about what is best for you, your spouse and your children, if any .

Make the decision you make it is necessary to have a specialist lawyer who will be the person who will help you carry out the process ensuring your rights, and also who can advise you on one way or another to carry out a marriage breakdown.

Leave a Reply