You and your spouse may consider divorce to end the marital relationship. However, depending on your circumstances or marital problems, a legal separation could be better.
Legal separation and divorce are similar in some ways, but the main difference is that a divorce legally ends the marriage, and a legal separation does not.
Consider the differences and similarities between separation and divorce before making your decision.
Key Takeaways
- Some states require a separation period before filing for a no-fault divorce.
- Parties remain married during separation and cannot remarry during that period.
- Divorce is final and ends the marriage permanently.
Differences Between Separation and Divorce
In a separation, you and your spouse may choose to live separately but remain legally married. A legal separation may not be permanent, and unlike a divorce, the arrangements can be reversed if you and your spouse wish to reconcile.
Other key differences include the following:
- In a legal separation, you ask the court to recognize that you no longer reside in the same household and no longer share your assets and properties. However, you remain married for other legal purposes, such as the division of marital property.
- In a divorce, you ask the court to end your marriage and divide property according to state laws.
Separation and divorce are similar for those living in separate houses with little contact. Couples engaged in bi-coastal marriages are an example of such an arrangement.
However, living apart is not always feasible, and in most states, living separately is not legally required to get a separation.
Similarities Between Separation and Divorce
Separation and divorce are similar in how custody and visitation rights are managed. If you have children, you must arrange visitation during the separation, like during a divorce.
- Custody and/or visitation of minor children will be decided by the parents and judged based on factors such as parental fitness, school, activities, and other factors determining the child’s best interest.
- Child support payments may be awarded during the separation to maintain the children’s standard of living.
- Spousal support may be awarded in divorce and legal separation in some circumstances.
Types of Separation Agreements
Besides legal separation with court involvement, other ways exist to stop living together without divorcing.
Trial Separation
A trial or informal separation means you and your spouse informally agree to live apart for some time. There are no legal requirements. Couples unsure about their marital status may use trial separation to test the waters.
Permanent Separation
A permanent separation occurs when you complete the separation process. You’re living apart, have divided your property, and worked out custody and visitation arrangements. However, you have not formalized your separation legally.
Legal Separation
Legal separation formalizes the separation process with a court order to decide custody and visitation, financial obligations, and any property division or support order to which you have agreed.
Divorce and Finances: What to Consider
When opting for divorce, you need to consider the financial outcome of the decision on yourselves and your family.
All money acquired during your marriage, except for gifts or inheritances to one spouse, is considered marital assets and subject to division according to the laws of your state (either community property or equitable division) unless you had a prenuptial agreement that made the assets separate property. For instance, some business owners have prenuptial agreements or spousal waivers that make all their profits or business interests their property, no matter when earned.
Dividing these assets can be complicated. Some things to discuss with one another and your divorce attorney during the divorce process:
- IRAs, social security benefits, and stock dividends: The time frame usually covers the date of marriage to the date of legal separation, so it is important to note if you and the other spouse spent time apart before the divorce.
- Children and tax credits: Parents need to find the fairest way to claim their children as dependents on their taxes. Alternate years or one child is usually best, but this may take some discussion with the attorneys and the court. However, generally, the IRS considers the child the qualifying child of the custodial parent for tax purposes.
- Outstanding debts: Most states now assign outstanding obligations to the spouse who acquired them, but not always. Be sure to provide both attorneys with a complete view of your financial situation so that debt can be allocated fairly. Some courts even required you to submit a sworn financial affidavit disclosing your assets and debts.
- Spouse’s insurance benefits and pension assets: These may be awarded through the employer and considered marital property. Some attorneys specialize in dividing insurance benefits and pension assets, and divorce attorneys frequently contact them in cases like this.
Use our Divorce Agreement template to simplify the divorce process. Our online questionnaire helps you draft the document and ensure you’ve included all the necessary information in your divorce agreement.
Why Would You Get a Legal Separation Instead of a Divorce?
As noted, there are many reasons why separated spouses can consider both separation and divorce. Sometimes, it just comes down to costs and legal fees. A legal separation can be inexpensive, as it may not cost more than the petition filing. Spouses can do this if they agree on the property division and custody arrangements.
If remarriage is not part of your plans, you may prefer a legal separation without the additional problems of divorce to handle your marital trouble. Divorce can be expensive — ranging from a few thousand to tens of thousands of dollars.
Know that separation leaves your marriage intact so that you can reverse your agreement. You and your spouse may work toward mending your relationship and wish to end the legal separation.
However, you may also choose to end the marriage entirely, but to do so, you would still have to file for a divorce even if you already have a separation.
Legal Separation vs. Divorce: Making the Choice
Legal separation and divorce are similar in the legal processes of dividing property and arranging the financial care of children. However, the significant difference is the finality of divorce. Divorce legally ends the marriage, and legal separation does not.
Reasons to Choose a Legal Separation
Why do people choose legal separation instead of divorce?
- Some religious beliefs prohibit divorce, and separation allows families to remain together without violating their beliefs.
- If you are unsure if your marriage is salvageable, you may opt for a temporary separation while still working to repair your relationship.
- If you have a large estate or a great deal of property, you may need the tax benefits of filing as a married couple. If you are a couple entitled to military benefits under the Uniformed Services Former Spouse Protection Act, you must remain married for ten years for the protections to take effect.
- Some families feel that a step-down approach to ending the family is easier on the children than divorce.
- Some courts require a separation or waiting period before a divorce may be granted.
There is no single answer for choosing separation over divorce. However, any or all of these are reasons to consider it an alternative.
Reasons to Choose a Divorce
There are as many reasons to choose divorce as to choose legal separation. Some of the most common include:
- Divorce is final. If you’re sure your marriage is irreconcilable, it may be best to finish it.
- A divorce is the only way for the parties to remarry.
- Divorce severs the relationship, so your former spouse cannot make legal, medical, or financial decisions for you (and vice versa).
If either or both of you own businesses, divorce may be necessary to free you from the financial obligations of your spouse’s business. Depending on how you handled your individual and business finances, this may be a complicated reason for divorce.
