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Contested Divorce

What is the Difference Between Legal Separation and Divorce?

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By Lonnie Nelson
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What is the difference between legal separation and divorce

If you and your spouse determine that your marriage is over, you may decide to file for divorce. However, you may also consider legal separation instead.

During a legal separation, you can resolve issues such as property division, child custody and support. The key difference between a legal separation and a divorce is that a divorce ends the marriage, while a legal separation does not.

Legally Separated

Some couples who want to end their marriage but are not ready for a divorce may choose legal separation. Others choose a legal separation to retain medical or financial benefits like insurance coverage or filing taxes together. In most cases, states treat money and property acquired during a legal separation the same as if it were accumulated in a divorce.

During a legal separation, spouses remain legally married and cannot remarry. They also retain decision-making rights (like being next of kin for one another) and are responsible for any debts incurred during the period of separation.

During a legal separation, a court can create a separation agreement that stipulates details of the separation such as a timeline for ending the marriage, child custody and visitation arrangements and other important considerations. It can also outline which assets are considered marital property and which are separate. The couple also decides how they will handle their finances, including how they will divide any accumulated debt.

Not Divorced

In a legal separation, the couple live apart and may have child custody, visitation and support orders issued by the court. But their marital status remains unchanged and they are not free to remarry. In addition, spouses who choose to separate retain the right to property rights (unless stated otherwise in a legal separation agreement). In contrast, divorce terminates all property and financial connections between the couple.

In many cases, couples will choose to pursue a legal separation rather than a divorce because they want to save their marriage or they have religious convictions that prohibit divorce. Another reason that some people choose a legal separation over divorce is to maintain insurance or other financial benefits like pension payments.

A legal separation is also a good option for separating spouses who still have children in school or who need to remain together for other reasons. This type of separation allows them to resolve issues while still being married and gives them a chance to reconcile later if they wish.

Separation Agreements

A couple that seeks legal separation does not ask the court to dissolve their marriage. However, they do undergo similar proceedings to those who file for divorce, such as property division and a child custody agreement.

Some couples choose a legal separation because of religious or personal beliefs that do not allow divorce. Likewise, they may want to retain medical insurance benefits that they could lose with a divorce.

If you and your spouse are struggling with a marital problem, consider the benefits of both separation and divorce before deciding which course to take. If you think your marriage cannot be saved, filing for a divorce right away will save you and your spouse the time it takes to reach an agreement through legal separation. Also, a divorce terminates all decision-making rights for the married couple, which includes the right to make financial and medical decisions on behalf of your spouse. Divorce also eliminates joint ownership of assets and responsibilities for debts that were acquired during the marriage.

Reconciliation

Some couples opt for a legal separation rather than divorce for religious or personal reasons. A legal separation allows the couple to remain married, yet live separately. It preserves eligibility for joint health insurance and social security benefits, and allows the spouses to remain connected financially for some purposes.

A legal separation also outlines which debts remain joint and which become sole responsibility of each individual party. It also preserves spouses’ property inheritance rights upon the other spouse’s death. This differs from a divorce which terminates inheritance rights.

Some couples pursue a trial separation in hopes of reconciling, or to test out the process before filing for a divorce. If the couple decides that reconciliation is unlikely, they may move on to a permanent separation. This type of separation typically involves a written agreement that outlines how the couple will live together and address issues like child custody, property division and support. This agreement can be used to form a divorce decree later on.

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