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Legal Separation vs. Divorce

Legal Separation or Divorce

A legal separation is a court order that mandates the rights and duties of a couple while they are still married but living apart. After a divorce, the spouses are no longer married. Although legal separations aren't very common, they can be helpful in some financial circumstances or where the couple's religious beliefs do not allow divorce. A legal separation could also be useful if the couple wishes to remain temporarily married or may want to reconcile but needs to establish rules for financial support, child custody, and property division. Because there are advantages and disadvantages to both processes, there are many things to consider when contemplating legal separation vs. divorce.

Legal Separation vs. Divorce: Differences

There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation. In a divorce your marriage is dissolved. Other differences include:

  • Health care/other benefits: Legal separation may allow for the retention of certain health care and other benefits. This includes certain Social Security benefits that terminate with a divorce.
  • Marital status: Legal separation allows you to retain your marital status, meaning that you're not free to marry anyone else; only once you're divorced can you remarry.
  • Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren't 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 preserves each spouse's legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
  • Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.

Legal Separation vs. Divorce: Similarities

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

  • Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a "motion pending litigation").
  • Child custody
  • Child visitation
  • Property division (both legal separation and divorce property division is based on the couple's situation and how it relates to the property)

How Living Separately Impacts Property Division

Living apart with no intent to continue the marriage can impact how a couple divides property if they end up divorcing. In addition to legal separation, this matters in states that have laws requiring couples seeking to file a no-fault divorce to live apart for a designated period of time.

Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage. If one spouse does not intend to continue the marriage, money and property acquired during that time may be seen as their own non-marital property.

Trial Separation

Couples can also have a trial separation, but it has no real legal effect. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and is therefore likely to be marital property.

Permanent Separation

Once one of the spouses has filed separation paperwork in court, most states view all property and debts acquired after a permanent separation as the separate property of the spouse who acquired it.

Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children's care.

Questions About Legal Separation vs. Divorce? An Attorney Can Help

Because each state has its own laws regarding property and debt division, it's important to check the laws where you live. These determinations can become quite convoluted due to the changing of the couple's circumstances, so it's a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation vs. divorce.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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