In the context of marital problems, the term “separation” is used in two different ways:
1. De Facto Separation
A husband and wife may decide to live separate and apart from each other, even though they still continue with their marriage. Marriage can only be terminated by means of divorce or death of one of the spouses.
It is not the Judge who intervenes in the separation of the spouses, but they decide to put an end to their cohabitation, whether temporarily or definitively.
De facto separation may also occur in case of desertion or abandonment; when one of the spouses has abandoned the family home. The abandoning spouse may be convicted for a crime for abandoning the spouse and children.
If you are willing to separate from your spouse, it is advisable either to file a petition for judicial separation (preferably agreed separation) or that you have your Spanish lawyer drawing up an agreement in writing that should reflect the following: custody of children and rights of visitation, as well as financial support of the children and spouse and any other financial terms.
Having the agreement for separation will allow you to relax in the knowledge that you are protected. In the long run, this knowledge is well worth the time and money it will cost you.
2. Judicial Separation
a) Agreed separation.
The spouses may agree to file for formal separation when they have been married for 3 full months. In this case the spouses agree to live separate and apart from each other experiencing some of the feelings of being separated without making a final decision to divorce.
Whenever the spouses ask the judge for a legal separation order, a draft of parenting plan must be attached to the petition.
The court procedure for separation by mutual agreement is quick and simple, being the main advantage that it’s easily reversible. You can try it for a while and then reconcile, or you can try it for a while and then proceed with divorce.
b) Non agreed separation
In this case is only one of the spouses, without the consent of the other, who files a petition for judicial separation after having been married for 3 full months. It is not necessary to wait for this period when there is a proved danger for life, physical integrity, liberty, moral integrity or sexual liberty or indemnity of the petitioner.
The court procedure for a non agreed separation may be long and complex. Depending on the circumstances of the case, either spouse may file for temporary measures regarding the matrimonial property, custody of children, rights of visitation, support, alimony, etc.
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