by Gabriela Matias
Separation is a procedure that is often confused with divorce. However, while divorce ends a marriage, separation does not. Marriage is a milestone in a couple’s life, as it is a big step in their journey together. However, every couple is susceptible to separation, and we know that this number has been growing significantly in recent years.
During this process, it is also important to remember the consequences of this action. After all, with the separation, you need to resolve all the pending issues that were/are the result of the marriage, such as alimony and child custody.
What is the difference between divorce and separation?
The separation and divorce processes, although they may seem similar, have some differences in terms of procedure.
Separation is a measure that suspends the duties of marriage, such as cohabitation and fidelity, but does not officially end the marriage bond.
Divorce, on the other hand, is the act that definitively dissolves the marriage, changing the marital status of both parties.
To begin either process, you need the support of a specialized lawyer who can advise you on the necessary documents and the procedures that must be followed.
The decision between separation and divorce depends on your situation and your expectations for the future.
Separation can be a good option for those who just want to take a break and not break the marital bond immediately.
Divorce, on the other hand, is the right choice for those who want to end the marriage once and for all and move on.
Regardless of the choice, it is essential to have the support of a specialized lawyer so that everything happens safely and that your rights are guaranteed during the process.
What are the legal impacts of separation?
When you and your spouse break up, you are separated. However, the marriage only ends legally after the divorce.
This happens because you have not yet formalized the dissolution of the union that exists between you. However, there is recognition that your situation requires a legal resolution.
Therefore, there will be two coexisting situations: the separation of the couple and the cohabitation with your partner.
For this reason, we recommend that you file for divorce before deciding to live in a stable union with another person.
Can you separate without getting a divorce?
Yes, you can separate without getting a divorce. Separation suspends the obligations of marriage, such as cohabitation and fidelity, but maintains the marital status of married couple.
This means that, even if you are separated, you cannot remarry until you formalize the divorce.
Separation is an option for those who wish to maintain the possibility of reconciliation, while divorce ends the marriage bond definitively.
To make the best decision, it is important to have the help of a specialized lawyer.
How to get separated?
Separation of bodies, or legal separation, is a legal action that precedes divorce.
To do this, you will need a lawyer to help you in this process, since he or she will be the one to file the request for a precautionary measure of separation of bodies and termination of marital duties.
Then, this action will be forwarded to the family court. There, the judge will analyze, together with the evidence presented, whether the request will be accepted or not.
If accepted, the process will go to a notary’s office. Then, the person responsible will issue a warrant and the court officer will be responsible for the separation of bodies warrant.
Then, with this document, you will provide the necessary information to the officer, who will inform your ex-spouse of the judge’s decision.
To help you understand better, there are two types of legal separation:
- Amicable legal separation
This occurs when both parties decide to end the relationship amicably. In other words, you both accept the end of the marriage.
Therefore, there is no need to present reasons for separating.
- Contentious legal separation (at the request of one of the parties)
If you want to get a divorce, but your spouse does not accept the end of the relationship, you can file a lawsuit for legal separation.
However, you must show that there have been violations of the rights and duties of marriage, or that it is no longer possible for the two of you to live under the same roof. For this reason, this model can also be known as a separation-sanction.
Serious violations of marital duties:
- The following are serious violations of marital duties:
- Failure to comply with the duties of reciprocal fidelity;
- Violation of the duty of mutual assistance;
- End of living together in the same house.
In this way, legal separation puts an end to the marital relationship and the rights it generates, that is, you can leave the house and the property regime will be suspended while the separation is in force.
However, since separation does not have the status of divorce, the marriage is not over, which means that, while legal separation is in force, neither party will be able to remarry.
How to get divorced if you have children?
If you have minor or incapacitated children, the divorce can be carried out out of court at a notary’s office, as long as all issues related to custody, visitation and alimony are previously resolved.
In other words, the part about the division of responsibilities for the children must be agreed upon and approved by the Public Prosecutor’s Office so that the divorce can be concluded at the notary’s office.
The new decision by the National Council of Justice (CNJ), approved in August 2024, allows inventories, division of assets and consensual divorces to be carried out at a notary’s office, even when there are minor children, as long as there is consensus between the parties about the rights of the minors and that the provisions are fair.
In these cases, the public deed of the inventory or divorce is forwarded to the Public Prosecutor’s Office.
If the Public Prosecutor’s Office identifies any irregularity or if there is a dispute, the case must be submitted to the Judiciary.
This change makes the process more agile and simplifies bureaucracy, helping to relieve the Judiciary.
However, even with the possibility of resolving some steps in a notary’s office, the guidance of a specialized lawyer remains essential to ensure that all details of the process are conducted correctly and that the interests of the children are protected.
Therefore, even if the divorce process involves minors, it does not necessarily have to be contentious.
If you and your spouse agree, you can opt for a consensual divorce, which will be faster and less stressful for everyone involved.
When a couple separates, is the wife entitled to alimony?
Alimony depends on a number of factors to be determined. It is entirely possible to request alimony for the ex-spouse if, during the relationship, that person was financially dependent on the other party and, after the separation, is unable, due to advanced age or some other reason, to enter the job market.
For this type of alimony, the court will set the amount and a deadline for this obligation to be resolved, because, in this situation, it must be a temporary burden.
If the person receiving alimony starts a new relationship, living in a stable union or getting married again, the payer is exempt from the responsibility of paying alimony.
There are cases in which this alimony is paid for a fixed period, until the person is able to reestablish themselves and return to the job market.
How long does a separation take?
To answer this question, we must take into account that each situation is very specific, so there is no pre-determined time.
However, depending on which method is best for your case, it is possible to have an idea of how long a couple’s separation takes to be concluded.
For example, divorces in which there is no consensus must take place in court, making the process longer.
However, if you manage to reach an agreement, the process will be consensual. Therefore, it will be faster. Thus, if there are many disagreements, you will go through a long and delicate process: a contested divorce.
But, let’s assume that you do not opt for any of the models above and opt for an out-of-court divorce. This model tends to be faster than the courts. There have been cases in which the divorce was finalized on the same day the couple filed the process.
In addition, what we can say is that a consensual judicial divorce process will rarely last less than two months. In turn, a contested divorce rarely takes less than six months, due to the movements in the process.
Does a person who separates abandon their home?
Abandoning your home occurs when you leave your marital home without intending to return for at least one uninterrupted year.
In addition, those who abandon their home may suffer certain legal sanctions, such as:
- Losing the right to alimony from their ex-spouse;
- They may lose the right to property and may even suffer family usucaption.
In a separation, on the other hand, the two of you decide that you can no longer live together and break your marital duties.
However, since the two situations are very similar, even if you are separated in fact, the courts may understand that you have abandoned your home.
Therefore, it is ideal that you file for separation as soon as possible to avoid problems.