A legal separation is a court order that mandates the legal rights and duties of a married couple while they are living apart. A divorce it the legal end of a marriage.
Legal separations are rare. But they are helpful in some financial circumstances. 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 issues such as:
There are advantages and disadvantages to both. So, there are many things to consider when contemplating legal separation vs. a divorce.
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. But a divorce legally ends your marriage. Other differences include:
- Health care/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 the other. Divorced spouses are no longer next of kin.
- Debts/liabilities: Separated spouses are responsible for joint debts taken on during the marriage. But they are not responsible for new debt incurred by the other spouse. 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/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: Similarities
In both divorce and legal separation proceedings, the court decides the following:
Separation maintenance is similar to spousal support in that it may include arrangements similar to alimony or child support. The difference comes from the effects of a divorce and is usually achieved through a "motion pending litigation."
Courts base property division in both legal separation and divorce on how the couple's situation relates to the property.
How Living Apart Impacts Division of Property
Living apart with the intent to divorce can impact how a couple divides their property. This impact also matters in states where couples must live apart for a period of time when seeking to file a no-fault divorce.
States vary in how they classify 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, it will classify money and property acquired during the separation as non-marital property.
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 acquired 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
Questions About Legal Separation vs. Divorce? An Attorney Can Help
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 family law attorney can help you sort through the consequences of legal separation and divorce.