As with any legal procedure, legal separation has some advantages and disadvantages. For instance, military spouses must remain married for a decade to take advantage of the benefits of the Uniformed Services Former Spouse Protection Act.
Furthermore, remaining married for at least 10 years means being able to take advantage of certain spousal social security benefits that are available after the duration of the marriage. If, at retirement, your spouse will draw more social security than you, it is beneficial to remain married for a minimum of 10 years so you can draw a larger sum by drawing on your spouse’s social security retirement too. Although a split is difficult, sometimes a legal separation is more convenient than a divorce.
For instance, a legal separation can be temporary, while a divorce is permanent. Some couples legally separate when trial separations do not work. For some couples, this may be the last resort to saving their marriage. Moreover, a legal separation is often more cost-effective than a divorce. Many parents notice that their children can adjust to a divorce if they typically legally separate first.
Below are some of the advantages of legal separation:
- When couples decide to choose to get a divorce, the agreement for separation can later become the grounds of the divorce separation;
- There could be tax benefits for filing your taxes jointly;
- Assets and debts may be considered independent entities and property with a legal separation;
- You may qualify for social security benefits if you stay married and reach the 10- year requirement for that purpose;
- Specific benefits from the military can be available too;
- Health insurance may apply to using the benefits of the other spouse, but, you will have to check the provisions on the policy to determine what happens when a couple legally separated;
- Religious reasons may require that you both remain married and legal separation allows the couple the time or space to live separately and determine if it helps their relationship or leads them to divorce;
- An agreement of separation addresses how various issues will be handled when the couple is not together and;
- A legal separation may also provide the framework for an actual divorce once the judge decides on the divorce agreement. Whichever party, at any moment, can modify the legal separation case into a case wanting a divorce.
Why Choose Legal Separation?
Couples may choose a legal separation instead of a divorce for various reasons. One of the primary reasons is that one or both members of the couple belong to a religion that does not permit or looks unfavorably upon divorce. Legal separation allows the parties to go on with their lives separately without violating their religious beliefs. However, as mentioned earlier, it is not legal to remarry when you are legally separated.
Another reason a couple may choose legal separation is that they are still deciding on their relationship and considering whether or not they want to file for a divorce. Legal separation differs from trial separation, where a couple lives apart without legally changing their status.
However, a legal separation forces the couple to make decisions about the same matters they would need with a divorce, such as custody and asset division. But keep in mind that couples can reconcile and become “married” if they change their minds about the separation.
Lastly, some couples may choose legal separation over divorce for financial reasons. Some people can still utilize their spouse’s health insurance plan if they are legally separated instead of divorced. There also may be other financial benefits to legal separation compared to divorce.
What are the Differences Between Legal Separation and Divorce?
There are some key differences between separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation, and your marriage is officially terminated in a divorce.
Other differences include:
- Health care/other benefits: Legal separation allows for the retention of healthcare and other benefits, including certain social security benefits that dissolve with a divorce;
- Marital status: Legal separation allows you to keep your marital status, meaning that you cannot marry another; once you are divorced, you can remarry;
- Decision-making: Spouses are considered next of kin and can make medical or financial decisions for the other; divorced spouses are not considered next of kin;
- Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process;
- Property rights: Legal separation secures each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights and;
- Remarriage/reconciliation: Divorce cannot be revoked or undone; reconciliation is easier with legal separation.
What are the Similarities between Legal Separation and Divorce?
In both divorce proceedings and the proceedings for legal separation, the court decides on the following:
- Separation maintenance
- Child custody;
- Child visitation;
- Property division (both legal separation and divorce property division is based on the couple’s circumstances and how it relates to the property) and;
- Living Separately and Impact on Property Division.
Situations may lead to couples living apart without intending to continue the marriage. Furthermore, some states have laws requiring couples seeking to file a no-fault divorce to live apart for a designated period. Living separately can affect the property division too.
Property and debt acquired while living separately are typically considered differently depending on where the couple resides. Some states decide the property classification based on whether either spouse intends to terminate the marriage.
What are the Legal Separation Disadvantages?
There are disadvantages of legal separation that may be a little more challenging to clarify as one part of the separation. These may affect another as a result of the situation. In terms of duration, a legal separation may take just as long and be as intense as a divorce because it involves issues like distributing assets and debts and property division.
Those who divorce after separation must do the entire process over again. Those who choose to continue their complete married relationship may feel like they have endured a divorce to get the marriage back.
There is a mental strain that results from legal separation. Many couples come up short in their efforts as they believe a legal separation might be a good method to determine if they should remain married. Nevertheless, the mental strain it causes usually leads to the relationship’s downfall. In some situations, legal separation might not be needed. Some couples believe that legal separation is a crucial step in understanding where the marriage will go.
But most of the time, it is not the case. Legal separation can give you a better gauge of how recoverable the marriage is. Still, it will remain unclear because it is a life-changing decision usually better evaluated if an informal separation is in place.
Remember that legal separation is not something each state acknowledges and could be called a different name. For instance, in Maryland, it is referred to as “Limited Divorce,” whereas in New Jersey, it is simply “Divorce without bed and board.” However, the basic legal separation guides are typically the same, no matter in which state you reside.
When Do I Need to Contact a Lawyer?
If you are considering a legal separation, it may be useful to research your local laws. Before making any decision, it is important to assess the issue’s pros and cons to understand your stance.
If you need further assistance, you can contact your local family law attorney to guide you through it.
