A family law attorney explains the difference between legal separation, divorce, and "taking a break."

By Sam Reed
Aug 14, 2019 @ 5:00 pm

Miley Cyrus and Liam Hemsworth's breakup is the puzzle we just can't crack. Recently, clashing reports from both sides have surfaced claiming that the relationship's demise was caused by the other's outlandish social behavior (Cyrus) or partying ways (Hemsworth). So it threw us for a loop when it was suggested that reconciliation might still be on the table in the wake of these increasingly dramatic reports.

On Wednesday, People reported that although Miley and Liam had separated, they were not yet pursuing a divorce, according to multiple sources. One source seemed to imply that because they are not yet using the dreaded "D-word," there is a possibility of Miam rising from the dead. 

“They are having a break right now because they needed it," the source told the publication. "It was a bad situation with a lot of disagreements ... They both agreed it’s better to spend time apart, but this doesn’t mean their relationship is completely over.”

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While that may technically be true — Miley and Liam are still bound in the eyes of the law — a separation isn't necessarily the same thing as "being on a break." 

It's unclear if Miley and Liam are indeed legally separated, though it has been reported that Cyrus moved out of the couple's shared Malibu home. That said, the pair could just be physically living apart, and not taking any legal action at the moment. 

But what's the difference between a legal separation and a full-fledged divorce anyway? InStyle connected with Nicole Sodoma, family law attorney and Managing Principal, Sodoma Law, for a quick email exchange to explain the difference, and what Miley and Liam could possibly be dealing with in the near future if they move forward with a divorce.

InStyle: Why would a couple choose to separate rather than divorce? 

Nicole Sodoma: Couples can choose to separate and live as if they are unmarried forever. Some couples stay separated (and choose not to divorce) for practical reasons such as health insurance, shared expenses, or for reasons that are more spiritual — because divorce legally ends a marriage. Usually, the divorce is requested because they are ready to close the chapter or they have met someone else.

How is a legal separation defined, and in what ways does it differ from a divorce? 

A separation period is required in most states before a divorce judgment is entered. Some states have short separation requirements while others have a full one year requirement. [Editor's note: A legal separation is not required in the state of California, where Miley Cyrus and Liam Hemsworth reside, before divorce.] Ideally, during the separation period, the couple is able to work through issues such as custody, financial support and the division of assets and debts and put those terms into writing.  Divorce legally ends a marriage. 

In your experience, when couples use the term “separated,” does that mean “taking a break” or legally separating? 

When couples use the term “separated,” it means they are doing more than “taking a break.” Most couples who are taking a break do so quietly. In fact, Cyrus and Hemsworth reportedly took a break before announcing their separation.

In your experience, can a separation before a divorce impact the divorce proceedings?

Every state has laws related to separation. As a divorce attorney for almost two decades, I am constantly reminding my clients that at some point you realize the people we marry are not the people we divorce. In one interview, Cyrus described Hemsworth as the “person I feel has my back the most.” The reality is that during the separation period, if you don’t see the person you married as your partner for life then they may stop having your back because they no longer have the same commitment to you they once did. As a result, they may make decisions that impact the divorce proceedings in a negative way.  You quickly learn that you can only control you.   

When it comes to division of assets, how does a separation differ from a divorce, if at all? 

Separation is a step towards a divorce. Ideally, during the separation period, and sometimes even before, the couple is able to work through issues such as custody, financial support and the division of assets and debts and put those terms into writing. 

Do you have any data or anecdotal evidence to estimate how many separations end in reconciliation?

I do not have empirical data but for the thousands of clients that we have represented, I can tell you that the number of people who legally separate and then successfully reconcile is very small. 

RELATED: Miley Cyrus and Liam Hemsworth Reportedly Aren't Divorcing Anytime Soon

In both legal separations and divorces, will a judge factor an individual’s behavior (ie. activity documented on social media, like partying) in determining a favorable or unfavorable judgment?

Credibility and the decisions you make during separation will be considered depending on the claims the Court must adjudicate. Social media can be a beast! Be careful about what you post and how and when your friends tag you in a post.

Are celebrities, whose personal lives are made public, more vulnerable in court because a judge may be exposed to what is happening in the papers?

Legally speaking, it should not be a factor.

Would a couple’s history of breaking up and getting back together factor into proceedings?

Not likely. But, it can make things more complicated if they are sharing expenses or incurring debt together.

This interview has been condensed and edited for clarity.

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