Separation and divorce are two ways that legally married couples can choose to end their marriage while resolving issues like child custody, spousal support, and division of marital property and debts. Separation allows spouses to live apart without divorcing. Many couples choose legal separation instead of divorce for religious reasons, to maintain health insurance or social security benefits, or to settle issues before finalizing a divorce.
So what is the difference between legal separation and divorce, and how do you choose which is right for your situation? This help guide covers everything you need to know about separation versus divorce.
What is a legal separation?
A legal separation is a court order that mandates the rights and responsibilities of a married couple who want to live apart but stay legally married. It is an alternative to divorce that allows spouses to live separately while remaining married in the eyes of the law.
A legal separation is not the same as a divorce. While both legal separation and divorce end a couple’s cohabitation, a divorce completely dissolves the marriage, allowing both parties to remarry. A legal separation leaves the marriage legally intact and neither spouse can remarry.
Here are some key differences between a legal separation and divorce:
What are the differences between legal separation vs. divorce?
Legal separation is a court order recognizing that a married couple has chosen to live apart and addressing issues like child custody, spousal support, and division of assets and debts. Legal separation does not legally end a marriage – couples remain legally married even when they live separately.
Divorce, or dissolution of marriage, completely ends a legal marriage. After a divorce, couples are no longer legally connected and can remarry. While legally separated couples remain married, divorce allows spouses to legally remarry.
Some key differences between legal separation and divorce include:
- Marital status – Legally separated spouses remain married, while divorced spouses are unmarried
- Property division – Separated couples divide assets and debts, while divorce equitably splits marital property
- Spousal support – Separation agreements can include spousal support, which continues after divorce
- Remarrying – Separated couples cannot remarry, but divorced spouses can marry again
- Waiting period – Most states require a separation period before allowing no-fault divorce
While there are critical differences, both legal separation and divorce allow couples to live apart, settle child custody and support, and divide marital property and debts. The main distinction is whether the marriage remains legally intact.
Legal Separation vs. Divorce: Similarities
While legal separation and divorce have important differences, they also share some key similarities:
- Both require filing papers in court and getting court approval on decisions like child custody, support, and division of assets and debts.
- The process for requesting spousal support and dividing property is very similar, if not identical, for both.
- Both allow the court to issue restraining orders and settle other legal matters while living separately before the marriage is formally dissolved.
- Legal separations and divorces follow similar eligibility rules – for example, meeting residency requirements in the state where the legal splitting up takes place.
- Both require following proper procedures for notification, filings, hearings, and final court orders to be legally binding.
So in many practical ways, obtaining a legal separation follows the same legal roadmap as filing for a divorce. The main difference is remaining legally married versus formally dissolving the marital relationship completely.
Why would you get a legal separation instead of a divorce?
There are a few reasons a married couple might choose a legal separation over a divorce:
1. Religious or Personal Beliefs
Some couples may not want to divorce for religious or deeply personal reasons, but still need to formalize a separation. Some religions discourage divorce but accept legal separation as an alternative.
2. Preserving Health Insurance Benefits
If one spouse gets health insurance through the other, a legal separation may allow them to keep that coverage. A divorce typically ends those benefits.
3. Uncertainty About Ending the Marriage
When spouses aren’t sure they want to permanently end the marriage, a legal separation can be a “trial run.” It provides distance while leaving the door open for reconciliation. If reconciliation doesn’t work out, they can move forward with divorce.
4. Meeting a Time Requirement
Some states require a couple to live separately for a period of time (like a year or more) before granting a divorce. A legal separation establishes that period of living apart while still providing legal protections.
5. Preserving Social Security/Retirement Benefits
In some cases, remaining married can allow spouses to claim Social Security, pension, or other retirement benefits they would lose in a divorce. A legal separation may enable both partners to access those benefits down the road.
There are plenty of reasons a couple might explore a legal separation instead of jumping straight to divorce. It provides a way to settle legal matters while holding off on formally dissolving the marriage right away.
Reasons to choose a divorce
While a legal separation works for some couples, many are better served by pursuing a divorce. Reasons to choose divorce over legal separation include:
- Wanting to legally terminate the marriage and move on with life apart from each other.
- Allowing both spouses to remarry or enter domestic partnerships with others.
- Resolving financial matters completely by terminating joint accounts, assets, and debts.
- Simplifying legal affairs like taxes, insurance, inheritances, medical decisions, etc.
- Settling child custody definitively by structuring a co-parenting arrangement after divorce rather than during separation.
- Ending potential financial liability for debts a spouse incurs during the separation period.
- Eliminating any uncertainty about whether the marriage will be reconciled.
- Avoiding having to convert a legal separation to divorce down the road if permanent separation is the goal.
For many couples, divorce provides a cleaner break and a fresh start emotionally and financially. The formal end of marriage can bring certainty and closure.
Frequently Asked Questions:
What is a trial separation?
A trial separation is an informal separation period where spouses live apart for a set period of time and set terms. It allows couples time to evaluate their marriage away from each other. A trial separation is not legally binding – couples would need a legal separation agreement to make it official.
How does legal separation affect my taxes compared to divorce?
Filing taxes while legally separated is different than filing after a divorce. With legal separation, you typically still file jointly or individually as a married couple. After divorce, you cannot file joint returns and must file individually as single or head of household. There are tax implications to both options.
Can I get a legal separation online or by filing papers myself?
Most states require you to formally file for separation through the court system. DIY divorce papers or online services won’t establish a legally binding separation agreement. You need to petition the court and have a judge approve the separation order and terms. Hiring an attorney can help navigate the legal process.
Final Thoughts: Things to Consider Before Making a Decision
- Each state has residency rules that must be met in order to file for divorce there. This often requires living there for 6 months to 1 year.
- The state where you file dictates which divorce laws will apply to issues like property division and child custody.
- You must properly serve divorce papers to your out-of-state spouse according to the requirements of your state.
- It is best to hire a divorce lawyer licensed in the state where you plan to file, but a second lawyer may be needed in your spouse’s state.
- If your spouse violates the divorce decree, you may need to go back to the divorce-granting state to enforce the order.
Getting divorced when your spouse lives in another state adds an extra layer of complexity. But understanding the key rules around residency, jurisdiction, and serving papers allows you to successfully navigate an interstate divorce. With some legal help, you can get through this difficult process even when your spouse moved away.