Legal Separation vs Divorce
Last Updated: May 17, 2022
Are you considering splitting with your spouse? If so, you should know divorce is not the only way to create space between you and your partner. With a legal separation, you can have your rights and responsibilities outlined by the court without ending your marriage.
Essentially, both options have their advantages and disadvantages. Which one is right for you depends on your situation and needs.
We’ll explore the legal separation vs divorce dilemma to help you understand the differences and make up your mind.
What Does Legally Separated Mean?
When dealing with a failing marriage, you can choose to split temporarily or permanently with your spouse. When informal, this decision doesn’t require any court involvement, and the partners can work out the terms of the separation.
However, to avoid confusion and disagreement, a couple can turn to the court to recognize their decision and issue an order outlining the rights and responsibilities of each spouse.
Generally, a legal separation agreement covers all matters that would be included in a final decree of divorce – property and debt division, child and spousal support, child custody, and visitation schedule.
So, is a legal separation the same as a divorce? Let’s find out!
Legally Separated vs Divorced: What’s the Difference?
In many ways, getting a legal separation is much like getting a divorce. Still, legal separation is when you live apart from your spouse, but you’re still married by law. Meanwhile, divorce is when you terminate your marriage and dissolve the bonds of matrimony.
So, in essence, the difference between divorce and legal separation is in the parties’ marital status and the related living and financial arrangements.
Specifically, with legal separation:
- The marriage is still intact.
- Couples will still share financial benefits such as social security or health insurance.
- Parties are not free to remarry.
- Debt and liabilities are still shared responsibilities.
- Spouses are still considered next of kin and have the right to inherit from each other.
- Reconciliation is easier when legally separated.
Meanwhile, after a divorce:
- The marriage is terminated.
- No decisions are required to be made together.
- Parties are no longer liable for their partner’s debt.
- Couples no longer share financial benefits such as medical aid or insurance.
- Parties no longer have the opportunity to reconcile as divorce is permanent.
- Spouses are no longer considered next of kin.
- Parties are free to remarry.
Choosing Legal Separation Over Divorce
Why get a legal separation instead of a divorce?
There are several reasons for legal separation over divorce. Some people may be apprehensive about getting a divorce at first, especially if there are children involved. At the end of the day, a legal separation is reversible and can give you space to figure things out while still protecting you financially.
Couples may also have religious or personal beliefs that prevent them from getting a divorce. Additionally, there are some benefits of legal separation for couples, such as medical aid, Social Security, pensions, or insurance. A legal separation also allows you and your spouse to continue filing taxes jointly, which can lead to some tax benefits.
Also, the legal separation vs divorce choice is typically an easy one for military spouses, considering the couple is ending their relationship on good terms. Since you need to be married for at least 10 years to take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act.1, you may want to use a legal separation to stay technically married until you reach this point.
The disadvantages of legal separation include not being able to get married to someone else or having to still pay off debt together. So, you may have some financial benefits, but paying off your spouse’s student loan debt isn’t one of them.
Choosing Divorce Over Legal Separation
Divorce or separation – still not sure which is right for you?
As mentioned above, the major difference between separation and divorce is in financial liability. Couples may want to choose divorce because they don’t want to be legally bound to their spouse and share financial responsibilities with them.
Furthermore, people get divorced when the marriage isn’t fixable, which may be due to infidelity, abuse, gambling, substance abuse, or loss of love and connection. In such cases, the partners typically want to end the relationship and terminate their spouse’s rights to make medical and financial decisions for them.
Also, if you want to get remarried, you’ll also need a divorce because you can’t legally remarry with a previous marriage in place.
Divorce vs Separation: State Law Requirements
Some states require legal separation before getting divorced. For example, Delaware, Illinois, Vermont, and Virginia require six-month waiting periods for couples to receive divorce decrees. Maryland and Nevada require a one-year separation before a divorce can be finalized. And North Carolina requires one year of separation before allowing a couple to even file a divorce. In other states, legal separation can become grounds for a divorce.
You can resolve all issues when you develop your separation agreement and live by it for a certain period of time. The separation agreement will then turn into a divorce decree after a while.
It should be noted that the laws for each state regarding legal separation may differ. For example, Nevada won’t require separation if you are filing a no-fault divorce due to incompatibility. And in Arizona, the state will only require legal separation if couples are ending a covenant marriage.
Separation and property division
Living separately can affect property division. Depending on where you live, the debt and property acquired while living separately are classified differently. There are some states that may determine the property classification based on whether parties have the intent to end the marriage.
There’s also trial separation, and any property or debt acquired during this type of separation is considered joint marital property. With permanent separation, some states classify all debts and property separately.
Separation and custody
Whether it’s legal, trial, or permanent separation, both parties share custody of children and will have the right to see them. In all states, either party can file for custody or child support during separation. The court will decide which parent will be custodial, considering certain eligibility criteria. There may also be visitation orders.
For more details about custody and visitation rights, you may want to seek legal advice from your lawyer.
There are many factors to consider with separation vs divorce, especially because certain states have different requirements for these separations. You may want to choose a legal separation if you still want to benefit from health insurance or other financial perks. Or if you want to reconcile at a later stage. Some couples also choose legal separation if they have specific religious beliefs or have children for whom the term wouldn’t sound and feels as devastating as divorce.
On the other hand, divorce is chosen by couples who don’t want to reconcile and want to live completely separate lives without the liabilities of the other. Still, a legal separation may be required before divorce, depending on the state you live in.
Now that you know the differences and benefits of legal separation vs divorce, we hope you’re one step closer to the decision that would work best for you and your family.
Legal experts suggest to never seek separation without the consent of your partner. You should also never deny your partner the right to co-parent unless there is an abuse issue. Additionally, you should not leave the family home until you sign your legal separation documents.
In some states, it’s required to be legally separate before the divorce. So you will have to file for separation before you can divorce. This will require both parties to live in separate households for six months to two years before they can get divorced.
During a legal separation, a court will still decide on matters regarding custody if you have children. However, you may be obligated to pay temporary alimony even if you are legally separated. During the separation, couples are allowed to legally live separately and own separate assets.
When considering legal separation vs divorce, many couples choose legal separation because they can still reconcile and save their marriage if they want to. Legal separation also allows them to make suitable arrangements for their children. Legally separated couples may also still benefit from joint financial perks such as health insurance and social security. However, it should be noted that 80% of separations lead to divorce.