Since each state has its own laws regarding the division of property and debts, it`s important to seek legal advice where you live. These decisions can become very complicated due to changing circumstances of the couple, so it`s a good idea for any spouse to consult their lawyer for help. A family law lawyer can help you understand the consequences of legal separation and divorce. This leads to a conflictual situation when the marriage applies the matrimonial regime. And, in principle, property and debts accumulated after de facto separations are attributed exclusively to the spouse to whom they correspond. But to do so, they must prove when the de facto separation took place. Clearly, there is a conflict of interest here: there are key differences between separation and divorce. The most fundamental and obvious difference is that you remain married during a legal separation. Instead, divorce dissolves the marriage covenant. Other differences are: The fact is that this de facto separation can be proven. This could have legal implications for issues such as the right to inherit from the other spouse. In the same way, this will happen with the assets and debts generated during this separation. Although the marriage may have been celebrated in community of property, these debts and property would already be owners.
However, our Civil Code provides for a possibility other than judicial separation. A notary must be appointed to certify it. Article 834 of the Civil Code makes the status of compulsory heir of the spouse subject to the condition that the spouse is not separated de facto or de jure. Thus, spouses separated de facto cannot receive their reserved share in the event of the death of their spouse. A child over the age of 16 may apply to the judge for emancipation if the parents are de facto separated. Movements of property after separation are subject to the matrimonial property regime of separation of property. This is the rule applicable from the date of the legal separation effect. But what if the separation is not legalized? In divorce and legal separation proceedings, the court decides as follows: de facto separation occurs when the spouses dissolve their conjugal cohabitation without, if necessary, applying to the court or to a notary. One of the main differences between de facto separation and legal separation is the conditions that must be met to end the relationship. De facto separation can be concluded at any time after marriage.
However, to apply for legal separation, the couple must have been married for at least three months. As already mentioned, de facto separation is not provided for in the Civil Code, while the law provides for legal separation as one of the legitimate means by which a couple can terminate their marriage, and therefore the first is not valid in the eyes of the law, while the other enjoys full legal effect. If you made a will before the de facto separation, we recommend that you make a new one to avoid conflicts. In the same way, if both parties decide to reconcile after separation, if the separation has really been reconciled, they can be together again as if nothing had happened. If, on the other hand, they have informed a judge or notary of their wish to separate, their reconciliation must also be informed. De facto separation is the situation where two spouses stop living together without promoting separation or divorce proceedings. In other words, it is a separation that is not legally recognized. Does that mean it has no legal effect? De facto separations can also have a detrimental effect on the widow`s pension in the event of the death of the spouse. In this context, it should be noted that the requirements applicable to each spouse depend on his or her situation.