Sometimes, despite your best efforts, you and your spouse might not be on the same page anymore. Your marriage’s challenges can feel overwhelming and signal a need for change. Before you go straight for a divorce, you may consider legal separation. Legal separation before divorce can give you a chance to reflect on what’s best for your future. Learn about this process below so you can navigate it with confidence.
What’s the Difference Between Separating & Divorcing?
Legal separation lets you and your spouse live apart but stay married. It’s often a temporary step for couples who need time to decide if they want to make up or part ways.
During a legal separation, you can create a separation agreement to establish mutual terms. Since you’re still married, you can keep some of the benefits of marriage. If you and your spouse need time apart but want to stay married, you can create a separation agreement yourself. Start your 7-day free trial today and get your agreed-upon terms in writing.
Alternatively, divorce ends the marriage. Divorcing couples use a divorce agreement to divide assets and address spousal support. Once a judge finalizes a divorce, both individuals are single in the eyes of the law. They lose the legal and financial benefits that marriage brings.
Legal Separation vs. Divorce
Read more about the differences between legal separation and divorce.
Do We Need to Legally Separate First?
Whether you need to separate before divorcing depends on your state. Some states require couples to live apart for a specific period, while others don’t.
For example, North Carolina mandates a one-year separation before filing for a divorce. Hawaii requires two years, while Vermont’s waiting period is six months. These timeframes vary, so be sure to check your state’s specific rules for guidance on how long you have to wait.
While waiting may seem like delaying the inevitable, these laws encourage reflection and prevent rushed decisions. A separation period lets couples reassess their situation and explore counseling. They can also take some time to focus on other aspects of their lives, like co-parenting. For some, it provides clarity and confirms divorce is the right choice.
If you’re unsure about your state’s requirements, don’t worry—it’s easy to find out. Research your state’s divorce laws online or consult a family law attorney.
How Long Do Couples Separate Before Divorcing?
The amount of time couples separate before going ahead with divorce often varies. Depending on where they live, couples may need to separate for a minimum period to abide by state laws. While couples must follow these requirements, they may choose to remain separated for longer for personal reasons.
Couples use their separation period to address important issues like finances and legal matters. Some may take a few months to make a decision, while others might take years to figure things out. Whether a couple is leaning toward a reunion or a divorce, taking extra time can help them make a thoughtful decision.
Why Should I Separate Before Divorcing?
Divorce is an emotional process that requires couples to make complex decisions. Separating first can help them manage logistics and make more thoughtful choices that aren’t driven by short-term emotions. Here are several reasons why separation before divorce might be the right choice.
1. Lets You Keep Marital Benefits
When you’re legally separated, you can still keep some marital benefits. Couples may be drawn to legally separate first, as they can maintain their quality of life with marital benefits and don’t have to seek replacement options. Some benefits you can keep when separated are the following.
Joint Filing Status
Even if you’re separated, you might still be able to file your taxes with your spouse. Filing jointly may be preferable over filing separately, as it can let you access lower tax rates and higher deductions. These benefits may result in a smaller tax liability, keeping more money in your wallet.
By filing together, you and your spouse can access tax credits that you may not otherwise qualify for:
- Earned Income Tax Credit
- American Opportunity and Lifetime Learning Education Tax Credits
- Child and Dependent Care Credit
- Exclusion or credit for adoption expenses
When filing together, both spouses must fulfill their tax obligations, including paying liabilities. Be sure to maintain open communication with your spouse to prevent issues with late payments.
Retirement Benefits
If retirement is on your horizon, a separation instead of a divorce can simplify retirement benefits. Separating lets couples keep spousal benefits associated with pensions and Social Security. This can be helpful if one individual didn’t work much during the marriage, as they can still have income in their older years from their spouse’s benefits.
As long as spouses are still married, they can get a share of each other’s pension benefits. The longer you’re married, the greater your entitled amount will be. Be sure to check your plan’s terms and state laws for clarity on the pension’s division.
Staying married may also help separated spouses recover higher amounts of Social Security payments. Starting at 62, a separated spouse who doesn’t remarry can receive Social Security benefits from their partner. Or, they can receive 50% of what their partner is entitled to based on their work record. To receive Social Security benefits, you must have been married for at least 10 years.
Learn How Separation Can Impact Your SS Eligibility
Social Security rules can be complex depending on individual circumstances, so be sure to visit your local Social Security office for assistance.
Health Insurance
While separated, a spouse can share their employer-sponsored healthcare coverage with an otherwise non-covered spouse. This can save the non-covered spouse the challenge of finding affordable coverage on their own.
Some employers may treat legal separation like a divorce, meaning that insurance benefits would not continue for the separated spouse. Check with your employer to confirm eligibility before separating.
2. Gives You the Chance to Reconcile
When a couple decides to separate, they may not be sure about getting a divorce. In some situations, they want an opportunity to reflect on their relationship.
They can use this period to attend counseling sessions and get to the root of their issues. They can learn what they need from the other person to continue with the marriage. If the issues seem insurmountable, they can have peace of mind that divorce is the right choice.
Couples can also use time apart to rediscover themselves as individuals. They may return to hobbies or pursuits they enjoyed before marriage or start attending individual therapy sessions. This reflection can help them improve themselves and their behaviors, which may make reconciliation more likely.
3. Allows You to Sort Out Divorce Terms
While separated, you and your spouse can complete a separation agreement. This document helps clarify expectations and serves as a blueprint for divorce. It provides time to address key issues like child custody, spousal support, and property division.
By separating first, you can negotiate complex terms without the pressure of a rushed divorce process. For example, you may have a strong attachment to a property and can take the time to decide how to divide it fairly. Once you establish separation terms, you can use them in the divorce.
4. Lessens the Impact on Children
Divorce can affect children, introducing changes like traveling between two homes and attending a new school. A legal separation can serve as a “trial” period, allowing parents to assess how the children are adjusting and make changes to living arrangements.
For example, couples might choose to separate but wait until their children finish the school year before finalizing the divorce. They can also begin counseling for the children during the separation. In some cases, couples may live in the same house while separated to maintain stability for their children.
Separation allows children to adjust more gradually. It also gives parents time to develop a parenting plan and create a stable environment. These measures can reduce the emotional toll on the children before the parents actually divorce.
Why Do People Separate But Never Divorce?
Some couples choose separation over divorce for various reasons. Religious beliefs may influence them, as certain theologies discourage or prohibit divorce. Couples may also face social or cultural pressures that make divorce challenging. So, they may opt for separation to address immediate concerns without breaking the marriage.
Other times, couples choose to remain separated for the long term for practical or financial reasons. For example, consider Timothy and Susan, who no longer want to be married. Timothy has a secure government job with great health insurance. Susan has a chronic illness, so she works part-time and doesn’t have benefits. They can separate but not divorce so Susan can keep access to Timothy’s health insurance.
Is Separating Before Divorcing a Good Idea?
Deciding whether to separate before divorcing is a personal decision. It depends on each couple’s unique circumstances and preferences. For some, separation offers the space needed to reflect on the relationship. It can provide clarity and help couples understand if issues are temporary or deeply rooted.
Consider the financial and legal implications of separating before divorcing, and talk with your partner about your concerns and feelings. Be sure to discuss what you both need from the relationship moving forward.
You may also consider talking to a counselor for professional guidance. Ultimately, weigh the pros and cons to decide whether separation is the right choice or if divorcing would be a better option.
What Happens to Property Acquired After Separation?
The treatment of property acquired after separation but before a divorce can be ambiguous. It depends on whether the state governing the marriage is a community property state. In community property states, property acquired after separation may still be considered marital property. However, a separation agreement can specify otherwise. In equitable distribution states, property acquired after separation will often go to its purchaser, especially if the parties support themselves.
The type of property and how the spouses acquired it can also affect its treatment. For example, a spouse’s income after marriage is separate property. However, property that comes from marital assets (like interest from a shared bank account) is shared marital property and divided as such.
How LegalTemplates Helps Through Challenging Times
At LegalTemplates, we understand that separation and divorce can be challenging, but we’re here to help. Our customizable separation and divorce agreements give you the tools to take control of your situation. Our document builder saves you time and money by providing legally sound templates that you can adjust to meet your unique needs.
We empower you to make informed decisions and remind you that you have the right resources at your disposal. Separation doesn’t have to feel like a setback. It’s an opportunity to plan for the next chapter of your life, whether that means reconciliation or moving on.
You have options, and with the right legal support, you can navigate this time with clarity and peace of mind. Take charge of your future today and focus on your emotional, legal, and financial well-being.
