You and your spouse may consider divorce to end the marital relationship. However, a legal separation could be better depending on your circumstances or marital problems. 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.
- Differences Between Separation and Divorce
- Similarities Between Separation and Divorce
- What Is a Legal Separation?
- How Does Legal Separation Work?
- Types of Separation Agreements
- What Is a Divorce?
- Divorce and Finances: What to Consider
- Why Would You Get a Legal Separation Instead of a Divorce?
- Legal Separation vs. Divorce: Making the Choice
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 who live in separate houses and have 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, it is not legally required to live separately to get a separation.
Similarities Between Separation and Divorce
Separation and divorce are alike in how things like custody and visitation rights are managed. If you have children, you must arrange visitation during the separation just as you would during a divorce.
- Custody and/or visitation of minor children will be decided by the parents and judged based on things like parental fitness, school, activities, and other factors determining the best interest of the child.
- Child support payments may be awarded during the separation to maintain the children’s standard of living.
- Spousal support may be awarded in some circumstances in divorce and legal separation.
What Is a Legal Separation?
A legal separation is a court-ordered agreement in which you and your spouse remain legally married but divide your assets, property, financial, and child support obligations. A legal separation agreement formalizes this arrangement.
You agree to live separate lives in a legal separation but remain legally married. In some states, such as California, you can still live in the same house as your spouse, but in other states, such as New York, you will have to live in separate homes if you plan to use the separation as grounds for your divorce.
Other key aspects:
- You and your spouse remain legally married and cannot remarry.
- Access to the joint property is frozen or suspended until the property is divided.
- As with a divorce, child support, custody, and visitation must be arranged.
- Retirement benefits, insurance, and other marital benefits remain intact.
A separation is as legally binding as a divorce, and courts set the same expectations of the parties regarding custody, support, and visitation.
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. Any or all of these are reasons for choosing it as an alternative.
How Does Legal Separation Work?
Not all states allow legal separation. You will need to check with your court or a family law attorney to be sure you can have this type of action.
In a legal separation, you file a petition, similar to a divorce petition. You request that the judge approve an arrangement for your separation as a couple and allow the division of property rights and financial arrangements.
The petition must include any child custody, visitation arrangements, support agreements you have made, and the date you began living apart or separated. Once the judge signs the petition, you are legally separated.
A legal separation may last as long as you decide.
Types of Separation Agreements
Besides legal separation with court involvement, there are other ways to stop living together without actually divorcing.
A trial separation, 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.
A permanent separation occurs when you complete the separation process. That is, 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 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.
What Is a Divorce?
In a divorce proceeding, the marriage is legally ended. You divide all the property acquired during the marriage and are no longer considered a marital entity for financial or social purposes. A divorce is finalized with a divorce decree. The key aspects that spouses decide upon during a divorce include:
- Complete division of assets and debts
- Separation of property and assets from the date of the divorce forward
- Arrangements for custody, visitation, and support of minor children
- Termination of insurance and retirement benefits for the spouse
- Termination of tax filing status
You are no longer married when your divorce is finalized and may marry other people. A divorce is final, and there is no way to undo it except by remarriage.
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.
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 each 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 debts 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 all of your assets and debts.
- Spouse’s insurance benefits and pension assets: These may be awarded through the employer and may be considered marital property. Some attorneys specialize in dividing insurance benefits and pension assets, and divorce attorneys frequently contact them in cases like this.
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 themselves 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 you have the possibility to 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 completely end the marriage, and to do so you would still have to file for a divorce even if you already have a separation in place.
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. But the significant difference is the finality of divorce. Divorce legally ends the marriage, and legal separation does not.
Find out more about the documents you need for divorce or separation. Use our free templates to help you get started on the necessary paperwork to complete the process.