My husband and I agree we need to separate. We’re fighting all the time and it’s hurting our three children. The thing is, we don’t want to get divorced. I receive great healthcare coverage through his job, and he also has good death benefits. If he dies, I would get a small regular payment that would help me take care of our children. If we get a legal separation, do we have to get divorced?
First, I’m sorry your family’s home life is so stressful. I pray that things work out for the best for you and your children. Sometimes a separation is exactly what is needed, and sometimes counselors even recommend it. Other times, just agreeing on the terms of separation enables couples to continue to live together as “roommates” while they have the terms of a separation worked out. Some couples want to live apart but reject divorce on religious or other grounds.
You can get a legal separation, which is a court order, or you can agree to a signed separation agreement without a court order, and never get divorced. While a separation agreement affords ease and privacy, a court-ordered separation is legally binding, so if either of you fails to do what you’re supposed to, the court can step in and enforce the terms. If a divorce becomes necessary, then having either one in place can make the divorce less painful, as most items involved will be settled already — such as property division and custody and visitation.
It sounds like you and your husband are really thinking this through. Some couples make the mistake of thinking that one of them just needs to move out. They forget that in marriage they are tied to each other by money matters and property, whether leased or owned. Who’s going to pay what? And you’ve got children. Will they live with you and, if so, will your husband pay child support? What about alimony? All those questions will be clearly answered in a signed separation agreement or a court-ordered legal separation.
The property and debt division portion of a separation agreement is legally binding in the State of Arkansas. However, custody and child support can never be totally binding without a court order; if one parent wants to change his or her mind, and has good reason to do so, the children’s best interests always take precedence. Further, a separation agreement will have to be filed with the court if the terms need to be enforced.
Just going through the process of outlining responsibilities in an agreement, whether intended to be a court order or a private separation agreement, helps to make sure you’ve covered everything. And no surprises mean fewer arguments. In fact, when the parties have a complicated financial picture, I prefer that they sign a separation agreement as soon as they can so that the amicable settlement can be made legal, and, hopefully, there will be a reconciliation, or, at the very least, a much more amicable divorce.
Both court-ordered legal separation and private separation agreements can be complicated. It would be a good idea to get guidance from an experienced family law attorney.