If you and your spouse are going through a rough patch, it’s completely normal to feel unsure about what to do next. You might be thinking about legal separation as a way to take some time and create boundaries while you figure things out. Or, if you’re leaning toward a more permanent solution, divorce might be on your mind. Either way, understanding your options regarding legal separation vs. divorce is key.
What Is Legal Separation?
Legal separation is a formal court process in which the couple legally separates but remains married. The couple writes a separation agreement to protect each individual, and the court approves it.
This document outlines the terms for alimony, child support, and property division while the couple is apart. Each couple’s separation agreement will look different depending on their situation. For example, some couples may opt for one spouse to pay spousal support to the other, while others may forgo this demand altogether. Furthermore, some couples may keep their property separate, while others manage it together.
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Reasons for a Legal Separation
A couple may opt for legal separation if they want to take time to figure out if they still work together. They get to keep all the benefits of being married but can thoughtfully consider if moving on permanently is the right option.
Separated vs Legally Separated
When separated, spouses live apart without a formal court order outlining rights and responsibilities. Financial obligations, like shared debts and assets, may still apply. Separated spouses can enter private agreements, but they may be hard to enforce.
In a legal separation, a court order formalizes the separation without divorce. The order defines each spouse’s duties regarding property, custody, and alimony, protecting each spouse’s interests and creating an equitable arrangement.
Whether separated or legally separated, couples may choose to live separately or stay in the same home. If remaining in the same home, they must set clear boundaries and act more like roommates than a couple.
What Is Divorce?
A divorce is the process of legally dissolving a marriage. While it can feel overwhelming and life-changing, it allows both partners to move on. One or both partners initiate the divorce by filing a divorce petition with the court. The petitioner requests the court to disband the marriage. If only one partner filed, the other must be served the divorce papers and receive time to respond.
From there, the partners can write a divorce agreement to outline key terms, including asset division, alimony, and child support. As long as the divorce agreement doesn’t put either party in a poor situation, the court will approve it and issue a final decree. If the parties can agree on the settlement’s terms, the process will be mostly seamless. If they disagree about certain terms, they may negotiate, mediate, or leave the decision to a judge.
Stay organized when filling out your divorce agreement by reviewing a divorce settlement checklist.
Reasons for a Divorce
A couple may opt for a divorce if they have irreconcilable differences, meaning they don’t see a way to make amends. They may be more likely to consider divorce if they have significant financial disagreements or a lack of communication that they’re not willing to work on.
Divorce may also be an option in cases of infidelity or domestic violence, both of which can cause a significant breach of trust and irreparable damage.
What Are the Differences Between Legal Separation vs Divorce?
Legal separation and divorce both create space between spouses, but they lead to very different outcomes. Legal separation allows couples to live apart while keeping their marriage intact, often giving them time to decide their next steps. Divorce, on the other hand, is a permanent legal end to the marriage. Knowing the key differences can help you decide which option best fits your situation.
Marital Status
One of the most important differences between these two processes is the marital status that comes with them. With a legal separation, spouses remain legally married. This status can offer reassurance to couples following religions that discourage or ban divorce.
Note that you cannot remarry while legally separated. Doing so may create a situation of bigamy, which is illegal in all US states. If you want to remarry, ensure that your previous marriage was properly dissolved via a divorce.
When a couple divorces, each individual is legally single. They’re free to remarry, but they may need to abide by waiting period requirements. Some states have a mandatory waiting period before you can remarry, but others let you remarry as soon as you’d like after your divorce is official. States with waiting period laws enforce them to prevent hasty decisions and allow time for appeals if needed.
Costs
Both divorce and legal separation incur specific costs, including attorney fees and court costs. The complexity and duration of a case can affect the final cost, no matter which process you pursue.
Legal separation may be cheaper upfront, as it doesn’t require a complete marriage dissolution. It often requires less negotiation over property division and fewer court filings.
However, it’s important to note that legal separation often leads to an eventual divorce. While legal separation may be less expensive originally, couples who legally separate and then divorce will end up paying for two legal processes. If you know that you will eventually get divorced, you may consider skipping legal separation to save on unnecessary costs.
State Recognition
No matter where you go in the US, divorce is recognized. If you divorce in one state and move to another, the other state will most likely recognize it, thanks to the US Constitution’s Full Faith and Credit Clause. However, the details for handling alimony, child custody, and asset division may vary, as state laws differ on these matters.
While divorce is recognized everywhere, legal separation is a bit more restricted. Most states recognize legal separation, but six don’t have established processes for it. These six states are Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas.
If you get a legal separation in a state that recognizes it and you move to a state that doesn’t, your situation may be less straightforward. Consult a lawyer to figure out your situation and how a separation agreement may affect agreed-upon terms if you move out of state.
Legal Finality
Separation keeps the marriage intact, while divorce legally ends the marriage. Some couples use a legal separation as a temporary break to sort out their issues, while others see it as a long-term alternative to divorce. If you’re unsure whether divorce is the right step, legal separation gives you time to figure out what feels best for your situation.
Decision-Making Authority
In a legal separation, spouses still have legal decision-making authority for each other. If you’re legally separated and no longer want your spouse to have this authority, you can specify your desire in your separation agreement. You may also want to update your advance directive, power of attorney, and other relevant legal documents.
On the other hand, a divorce ends your spouse’s decision-making authority. It’s essential to update your preferences so you can have your desires respected if you ever can’t act for yourself. Otherwise, a court may appoint a guardian or conservator. While they will do their best to appoint someone fit for the job, it’s better if you can make the decision in advance.
Inheritance Rights
When you’re legally separated, your spouse typically keeps their inheritance rights. Some couples are fine with this arrangement and leave things as they are. Others choose to engage in estate planning after separation. During this process, they update their last will, revocable living trust, or other inheritance documents to explicitly name a new beneficiary.
When you divorce, your spouse automatically loses their inheritance rights. However, you can still give them the right to inherit your property when you pass away, but you must take the time to name them in your estate plan.
Health Insurance
In a legal separation, a spouse may be able to keep the other’s healthcare coverage. Some employers may keep covering both spouses under the same plan, as they may consider the couple married. However, be sure to check the terms of your employer’s benefits plan, as coverage rules during a legal separation can vary.
When you’re divorced, you can pretty much guarantee a loss in coverage for both spouses. While this may seem discouraging, it helps create a greater severance in the couple’s lives, accomplishing the goal of helping them move on.
Financial Benefits
Legally separated spouses may continue to have access to certain financial benefits, including retirement accounts and Social Security payments. According to the Pension Rights Center, a spouse may also have a right to their former partner’s pension plan if they get a Qualified Domestic Relations Order (QDRO) from their local court.
However, when couples divorce, the spouses usually lose these benefits. As a result, they have to rely on their individual accounts and savings. If they don’t have any of their own benefits because they didn’t work during their marriage, they have to work out different arrangements.
Property Ownership
Separated couples will continue to own property in the same way they did during marriage. Nothing will change, but a separation agreement can dictate different terms. For example, suppose a couple shares a marital home during marriage. If they separate, they will both still be entitled to the property, but a separation agreement can divide it otherwise if the couples see fit.
Alternatively, couples who divorce must follow their state’s laws for property division. Things won’t stay the same as they were when they were married. They’ll either have to share the marital property 50/50 (in a community property state) or divide it up fairly (in an equitable distribution state). They can outline agreed-upon terms in a divorce agreement, but the decision will default to the state if they can’t decide.
Tax Implications
When tax season comes around, separated couples can still file jointly as if they were married in most cases. Filing jointly lets them keep their higher tax bracket, and they may qualify for certain credits.
However, divorcing means losing access to the joint filing status. Divorced individuals must file separately, either as “Single” or “Head of Household” if they have dependents.
Timeline & Residency Requirements
Whether you separate from or divorce your spouse, you may not be able to do it right away. Some states have certain restrictions in place that can delay these processes.
For example, spouses may need to reside in their state for a certain amount of time before they can legally separate. Residency requirements for legal separation tend to be shorter than those for divorce.
Divorce also has additional restrictions, and those are called waiting periods. A waiting period is how long the spouses must wait after filing for divorce before a court issues its final judgment.
| Difference | Legal Separation | Divorce |
|---|---|---|
| Marital Status | Remain married | Legal end of marriage |
| Costs | Usually less expensive | Usually more expensive |
| State Recognition | Recognized in all states but 6 | Recognized in all states |
| Legal Finality | Less final | More final |
| Decision-Making Authority | Keep decision-making authority | Lose decision-making authority |
| Inheritance Rights | Keep inheritance rights | Lose inheritance rights |
| Health Insurance | Keep health insurance access | Lose health insurance access |
| Financial Benefits | Keep access to spouse's benefits | Lose access to ex-spouse's benefits |
| Property Ownership | Keep joint ownership | Divide property |
| Tax Implications | Keep joint filing status | Lose joint filing status |
| Timeline & Residency Requirements | Less strict | Stricter |
Pros & Cons of Legal Separation
Legal separation can offer a middle ground for couples unsure about committing to a full divorce. It provides some of the benefits of separation, like living apart, while still maintaining certain legal protections. However, legal separation may have challenges, like lingering financial ties and the inability to remarry.
Pros of Legal Separation
- Keeps financial benefits: You may be able to keep tax, Social Security, and pension perks.
- Maintains health insurance: Some plans cover separated spouses, alleviating some stress of one spouse needing to find their own coverage.
- Provides clarity: You can have adequate time to reflect on their marriage without ending it prematurely.
- Aids divorce: Legal separation can help you emotionally and financially prepare for the next step of divorce.
Cons of Legal Separation
- Marriage remains intact: Spouses cannot remarry, as they will still be legally married to their spouse.
- Financial ties continue: You often still share debts, assets, and tax obligations, which may be challenging as your lives are still intertwined.
- Lacks full closure: You may not get the closure they need, as you still have legal ties to your partner.
Read our guide to learn why you should consider separation before divorce.
Pros & Cons of Divorce
Divorce signals the end of a marriage and offers individuals the opportunity to move on independently. While it gives a clear legal resolution to the relationship, it can come with emotional, financial, and logistical challenges.
Pros of Divorce
- Complete independence: Divorce offers legal and financial independence from an ex-spouse, except alimony.
- Freedom to remarry: You can legally marry a new partner if you find someone new you’d like to spend your life with.
- Emotional closure: You can experience a definitive end to your marriage.
- Simplifies finances: You will no longer have shared debts, tax complications, or joint obligations.
Cons of Divorce
- Loss of benefits: You may lose access to spousal benefits, including joint filing and shared retirement benefits.
- Financial and legal costs: Divorce proceedings can be even more expensive and time-consuming than a legal separation.
- Emotional strain: Divorce can be stressful, especially if one spouse contests certain aspects.
- Impact on family: Divorce can uproot children’s sense of stability.
How Legal Templates Helps
At Legal Templates, we provide the tools and resources you need to get through the legal aspects of significant life changes like separation and divorce. Maybe you’re considering legal separation as an alternative to divorce. Or, you want to move forward with the divorce process. In any case, we provide easy-to-use forms, including separation agreements and divorce agreements, to simplify your journey.
We understand that a marital status change can be overwhelming, and our resources can make the process clearer and more manageable. With the right documents, you can ensure that your decisions align with your needs and help ease the transition into the next chapter of your life.
