When married people decide they no longer want to be a couple, they have two ways of officially and legally ending their marriage: (1) divorce and (2) legal separation.
Divorce is something many may be familiar with: assets and debts are divided, provisions for children are made, alimony is granted or is not, and the court issues an order terminating the marriage. Legal separation is less well known. It involves many of the same issues as a divorce, but with a twist: the couple stays married to each other.
To gain a better understanding of the differences between legal separation and divorce, it is first helpful to know each of their basic definitions.
Legal separation, also known as “marital separation,” refers to a binding written agreement that a married couple enters into with the blessing of the family law court. It defines how the couple will manage their affairs while living apart. Entering into a legal separation is often one of the first steps that a married couple takes when they are deciding whether or not to get a divorce.
Divorce, on the other hand, is the legal, final termination of a marriage granted by a court during a divorce proceeding.
What are Some Things to Consider When Deciding Between Getting a Legal Separation or a Divorce?
The primary difference between legal separation and divorce is that legal separation does not terminate the marriage, whereas divorce does. Thus, when a couple is only legally separated, they are still married in the eyes of the law—all of the rights and duties that they owe to each other as spouses will still apply. Furthermore, just like a divorcing couple, a couple that files for legal separation can obtain court orders addressing various issues such as child custody, visitation rights, and spousal or child support.
In many cases, a legal separation order or settlement agreement can be used later on by a court during a subsequent divorce proceeding and may serve as the basis of a divorce decree. When this occurs, the date that the couple separated might be a factor that the court considers when determining specific legal issues, like how to divide marital property or assets.
Legal separation does not always lead to filing for a divorce, however, especially in circumstances where the couple has stopped fighting with each other, but they do not wish to live together again. Other situations where couples will consider being legally separated instead of divorced include:
- Where religious or ethical beliefs make obtaining a divorce unacceptable
- When the divorce laws of a specific jurisdiction are too restrictive, in a legal separation, the parties can often avoid problems found in the state’s divorce law by agreeing to resolve the issue(s) themselves, outside of the strictures of the divorce code.
- If a couple no longer wants to accumulate marital property. There are two ways of holding property in a marriage: community property (i.e., marital property) and individual property. As the names suggest, both parties own community property, and individual property is not. While a couple is married, there is a strong presumption that all of their property is community property and should be divided evenly in a divorce.
- One reason to get a legal separation instead of just living apart is that in a legal separation agreement, the parties can decide that any property obtained by either party after the date of the separation agreement is individual property, not community property.
- When a couple wants to keep their married status to receive certain financial or medical benefits, such as for tax, inheritance, or healthcare purposes
To get a legal separation, the parties must agree to each term of the order of separation – in effect, they design the rules that will govern them. If a couple cannot, or does not want to, try to resolve their differences and instead will ask the court to decide certain issues, divorce is the only possibility.
Divorce is also indicated if there is an issue that affects a child (e.g., child abuse or domestic violence) or when one or both of the partners wish to marry different people.
How are Legal Separation and Divorce Similar?
Legal separation and divorce can often give rise to similar issues. For example, both legal separation agreements and divorce decrees typically cover the following:
- The couple must disclose all of their property and assets to determine how to divide them between the two of them
- The couple may need to file for a court order to establish spousal support (alimony)
- If children are involved, the couple must determine custody arrangements and create a visitation schedule. The couple will also need an order determining how much child support will have to be paid and by whom
Legal separation and divorce can have similar consequences concerning the couple’s joint property. This is especially true in situations where the couple has set up a joint bank or investment account, has entered into prior agreements together (e.g., a mortgage), or if they have been operating a business together.
How Do Legal Separation and Divorce Differ?
Despite having some similarities, legal separation has many aspects that differentiate it from divorce. For example, in a legal separation, one spouse can often claim benefits from the other spouse because they are still legally married. This can include military-related benefits, filing joint taxes, and some claims involving employment matters. An ex-spouse would not have the right to claim any of those benefits.
Additionally, legal separation does not terminate the marriage. Thus, if a couple chooses to reconcile and remain married, they have the option of simply filing certain documents to request that the separation order be lifted rather than go through the more complex process of getting married again.
Generally speaking, legal separation tends to be a less expensive arrangement. This is partly because a couple can still claim marriage benefits with the state. It may be beneficial to discuss some of your concerns with an attorney. They can guide you by providing you with legal counsel that can help you to make a better-informed decision.
If I Have Questions Concerning Whether Legal Separation or Divorce is Right for Me, Should I Contact a Lawyer?
The laws applied in a legal separation or divorce proceeding can vary widely from state to state. As such, you might want to consider contacting a local family lawyer for any questions or concerns that you may have regarding legal separation and divorce. Getting general information about ending a marriage can only take you so far – you need to know the provisions of your own state’s separation and divorce laws.
An experienced attorney can counsel you about specific differences between the two in your state and how each of these arrangements could potentially affect your situation. Additionally, an attorney can help you draft any locally required documents and file them with the court.
One of the most important benefits that an attorney can provide is to negotiate with your spouse or your spouse’s lawyer. This keeps you from needing to have contentious arguments with your spouse.
Of course, if necessary, your attorney can represent you if you have to appear in court.
