Absolute Divorce vs. Limited Divorce

When a marriage is over, the most common path people take is to file for a divorce to end things permanently. But in some cases, couples aren't quite ready to take that final step. In many states, the law provides an alternative—a middle ground so to speak. This article will help you better understand "absolute divorce" and "limited divorce."

What Is "Absolute" Divorce?

When people talk about divorce, an "absolute" divorce is usually what they're referring to. It's called "absolute" because it's the type of divorce that ends the marriage once and for all. Truth be told, the term is a bit old-fashioned, and only a few places, such as North Carolina, Maryland, and the District of Columbia, actually use it. In most states, the laws simply refer to "divorce" or "dissolution of marriage."

In an absolute divorce, the court (or the couple's marital settlement agreement) will address all of the legal issues involved in ending the marriage, such as alimony, child support, child custody, and property division. Once the court has issued a judgment (or "decree") of absolute divorce, the spouses no longer have any of the rights or privileges that arose when they got married. These include things like the ability to file a joint income tax return, the right to automatically inherit a share of each other's estate, and the chance to obtain insurance benefits through the other spouse's employer.

In order to obtain an absolute divorce, you must meet your state's residency requirements, and you must have "grounds" (acceptable legal reasons) for ending the marriage. Residency rules and grounds for divorce vary from state to state.

What Is a "Limited" Divorce?

For folks outside the legal profession, the fact that there can be more than one kind of divorce may come as a surprise. A divorce is a divorce, right? Marriage over, drop the mic, move on. And that would be correct if you were talking about actually ending the marriage. But in a few states, something called "limited" divorce enters the picture.

Does limited divorce mean that you're kind of divorced? In one way it does, because a limited divorce has some of the same effects as an absolute divorce in terms of the rights and liabilities spouses have. The major difference between the two is that when a limited divorce is over . . . you're still married. Unlike absolute divorce, you're not free to marry anyone else.

The reality is that "limited divorce" is actually akin to a court-sanctioned separation. In the states that have this option, you file your limited-divorce papers (known as a "complaint" or "petition") with the court, the same way you would start an absolute divorce. Normally, there are similar rules, like meeting residency requirements and having grounds. And a limited divorce can usually address the same issues (custody and so on) that you find in absolute divorce.

Only a few states, such as Maryland, actually use the term "limited divorce." Other states, like New Jersey and Virginia, refer to limited divorce as "divorce from bed and board." On the whole though, most states that provide for limited divorce use the term "legal separation."

You should be aware that not all states allow limited divorce or legal separation, no matter what it's called. And in states that do, there may be limitations on using it. For example, in New Jersey, both spouses must agree to filing for divorce from bed and board. And in Virginia, divorce from bed and board is only available to spouses who claim that the other spouse is guilty of cruelty, or willful desertion or abandonment, or that the filing spouse suffers from a reasonable fear of bodily harm from the other spouse.

Why Would Anyone Choose a Limited Divorce?

A limited divorce can be just as time consuming, anxiety laden, and expensive (think legal fees) as an absolute divorce. So it's reasonable to wonder why anyone would opt for it if you're still going to be married when it's over. Actually, there are a number of potential reasons.

• Although divorce doesn't have the stigma it once did, there are still people who are concerned about "how it looks," In those circles, a legal separation may be more socially acceptable.
• A person's religion might not condone an absolute divorce.
• If a state has stricter grounds for absolute divorce than limited divorce, spouses who don't yet meet the standards for an absolute divorce may choose limited divorce as an interim measure. And some states allow you to eventually convert a limited divorce to an absolute divorce.
• Sometimes a couple feel they need to be apart, but aren't ready to give up on the marriage. A legal separation can address issues regarding the children, support, and property, so there's at least some stability in those areas while the spouses try to figure things out.
• There may be practical reasons—usually finance related—to stay legally married. For example, one spouse might need to continue receiving health insurance coverage through the other spouse's plan. Or, income tax implications may come into play. But in those situations, spouses need to do their homework regarding insurance company or IRS rules governing legal separations, to make sure what they're planning to do is permissible.

What About Separation Agreements?

You may have heard about "separation agreements," sometimes called "divorce settlement agreements" or "property settlement agreements." These are documents that are prepared and signed after couples have settled all their marital issues, usually with the aid of their lawyers or through mediation.

In terms of whether a separation agreement is considered a legal separation, the answer can be a little confusing. As you saw above, a true legal separation is one that goes through the courts. If you live in a state with legal separation (or limited divorce) and you reach a separation agreement with your spouse, you typically will have to submit the agreement for a judge's approval in order for the agreement to be part of the separation or limited divorce judgment. But in states without legal separation, the court doesn't have to be involved with a separation agreement.

That said, a separation agreement that's properly signed by both spouses is a legally binding document. It's essentially a contract between them. So if one spouse violates its terms, the other spouse can go to court to force compliance, just as you would with any breach of contract. (Except the case would be heard in family court rather than a general civil court.)

The beauty of separation agreements is that if you eventually decide to file a divorce complaint, whether absolute or limited, the fact that you've already resolved all your issues will make the divorce process easier. The court will consider your case "uncontested," and your separation agreement will become a part of the divorce judgment.

Learn more about your state's laws on divorce—including unlimited divorce, legal separation or limited divorce, residency requirements, and legal grounds for divorce.