Legal Separation vs. Divorce

Legal separation (permanent separation) is also suitable for couples whose religious beliefs don’t allow divorce. Couples may also want a permanent separation for the tax benefits or insurance benefits of staying married. A couple who wants to stay married for religious reasons or to try to reconcile can use a separation agreement to establish rules for:

• Financial support
• Child custody
• Property division

There are advantages and disadvantages to both legal separation and divorce. So, there are many things to consider when contemplating legal separation vs. divorce. Keep reading to learn the key legal difference between separation and divorce and how to make the best choice for you and your family.

Deciding to end your marriage is never an easy decision. Find local legal help.

Legal Separation vs. Divorce: Differences

There are key differences between a legal separation and divorce. The main difference is that you’re still married during a legal separation. A divorce legally ends your marriage. Other differences include:

• Health care and other benefits: Legal separation may allow for the retention of some benefits, such as health insurance and certain Social Security benefits, that end with divorce.

• Marital status: Legal separation allows you to keep your marital status. That means you’re not free to marry anyone else. You can only remarry when you’re divorced.

• Decision-making: States consider a separated couple to be next of kin. Separated spouses can make medical or financial decisions for each other. Divorced spouses are no longer next of kin.

• Debts and liabilities: Separated spouses are responsible for joint debts taken on during the marriage. Depending on the state, separated spouses may or may not be responsible for new debt incurred by the other spouse after separation. The court will divide marital debt when the couple moves on to divorce.

• Property rights: Legal separation preserves a spouse’s property rights when the other spouse dies. A divorce extinguishes these rights.

• Remarriage or reconciliation: Reconciliation is easier with legal separation. A divorce is final, so you must remarry if you want a legal reunification.

Legal Separation vs. Divorce: Legal Similarities

In both divorce and legal separation proceedings, the court decides the following:

• Separation maintenance
• Child custody
• Child visitation (parenting plans, parenting schedules, and timesharing)
• Property division

Separation maintenance is similar to spousal support. It may include arrangements similar to alimony or child support. It differs due to the effects of a divorce and is usually achieved through a “motion pending litigation.” In both legal separation and divorce, courts base property division on how the couple’s situation relates to the property.

How Living Apart Impacts the Division of Property

Living apart with the intent to divorce can impact how a couple divides their property. 

States vary in how they classify the property and debt acquired while living apart. Some states classify property on whether either spouse intends to divorce. So, if a spouse intends to divorce, a state may classify money and property acquired during the separation as non-marital property.

Trial Separation

There are different types of separations. Some couples who separate don’t intend to start the divorce process. In this case, they can use a trial separation to live separate lives while they attempt to reconcile. But trial separations have no legal effect. States consider any property or debt acquired during a trial separation as marital property.

Property and Debt Acquired During a Legal Separation

Most states view property and debts acquired after a spouse has filed separation paperwork as separate property. States may treat debts used for family necessities by either spouse during a legal separation as joint debt. These debts can include things like:

• House payments
• Maintenance of the family home
• Childcare expenses

This is not the same as a divorce decree, but it might be related in a variety of ways.

Questions About Legal Separation vs. Divorce? Get Legal Advice

Any dissolution of marriage is a stressful process. Even uncontested divorce proceedings are difficult. Separating marital assets and debts is complicated.

State laws vary for property and debt division. So, it’s essential to check the laws where you live. Because the laws depend on the couple’s changing circumstances, it’s a good idea for each spouse to seek legal advice. A local attorney can help you sort through the consequences of legal separation and divorce. Get the legal help you need.

FindLaw’s directory of family law attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals near you. Because your state’s family laws are relevant, your attorney should be licensed in your state. Your search results will also show important details about potential lawyers, including ratings and whether they offer free case evaluations.