Divorce vs Legal Separation
If you think your marriage may be heading for divorce, is it worth considering a legal separation first? What is a legal separation, how is it different than a divorce, and is there any reason to involve the courts in your separation? A legal separation is an option worth considering for many couples, and it can come in handy for certain situations. Let’s take a closer look at the differences between a legal separation and divorce and review the benefits and drawbacks of a legal separation.
What Is the Difference Between Divorce and Legal Separation?
In a nutshell, a legal separation is a court order that mandates that you and your spouse live in separate locations while still maintaining a legal marriage and many of the benefits that marriage entails. A divorce is the legal dissolution of your marriage.
(More resources: He’s Moved Out—Now What?)
What Are the Benefits of a Legal Separation?
One of the primary benefits of a legal separation is that it gives you space and time to consider whether divorce is truly the best option for your relationship. A divorce cannot be reversed. Once you sign the paperwork, your marriage is dissolved. When you choose legal separation, the possibility of reconciliation remains on the table.
Time to Prepare for Divorce
If you’ve already determined that divorce is the right choice, a legal separation can also give you time to unwind your finances and assets from your partner and negotiate other aspects of the divorce, such as child custody and spousal support.
(More resources: How to Close Down Joint Accounts During a Divorce)
Receipt of Benefits
During a legal separation, you can still enjoy many benefits of being married, including access to your spouse’s health insurance through their work, Social Security benefits, pension funds, and even their life insurance payout if they should pass away. If one spouse stayed at home during the marriage, a legal separation may be helpful in the short-term until they become employed. In some cases, spouses who do not plan to re-marry and who remain on cordial terms may decide to stay legally separated so that one spouse can continue to enjoy valuable health, Social Security, and pension benefits from the other spouse.
Healthcare and Financial Decisions
During a legal separation, spouses retain the right to make healthcare and financial decisions on behalf of the other spouse if that spouse becomes incapacitated (unless the spouse states otherwise in estate planning documents). This may be an important factor for couples where one spouse is ill and the spouses maintain a positive and constructive relationship.
What Are the Drawbacks of a Legal Separation?
The major drawback of choosing a legal separation instead of divorce is that you cannot remarry if you find someone else special. That means you and your new potential spouse cannot enjoy the financial and legal benefits of marriage to each other until you are legally divorced. For example, if you don’t have health insurance and your new partner has a great policy through their work, you can’t go on their insurance as a spouse until you are divorced.
Why Choose a Legal Separation Instead of a Regular Separation?
Do you really have to go to court to file for a legal separation instead of just packing a bag and moving out of the house? Certainly, many couples choose to separate without filing for a legal separation, and that could be the right choice for you.
However, it’s worth understanding that a legal separation offers several legal benefits that a non-legal separation can’t.
Separation of Property
As long as you are married, your spouse is entitled to a portion of your marital property (all the assets and debts you earned while married, with a few exceptions). In certain states, like California and Texas, each spouse is entitled to half of the marital property regardless of whether one spouse was a higher earner than the other (or even the sole earner).
A legal separation begins the process of separating your property and finances. This may be helpful for the higher-earning spouse or a spouse who doesn’t want to take on additional debt that the other spouse opens. It should be noted that if you “co-mingle” assets after a legal separation (like co-sign on your spouse’s new car loan), that asset can become marital property even during your separation.
Child custody is often one of the most difficult issues parents face when contemplating divorce. It must also be addressed during a legal separation. If you aren’t able to come to a custody agreement with your spouse, the court can step in during a proceeding for legal separation and make a child custody determination.
(More resources: Helping Children Adjust to Divorce)
Child Support and Spousal Support
Likewise, a court can also require a higher-earning spouse to pay child support and/or spousal support (also known as alimony) to the lower-earning spouse. If you and your spouse can come to a mutually agreeable arrangement on your own, you may not need the court to step in, but when emotions run high, sometimes the court is the best option.
(More resources: Do Women Heave to Pay Child Support to Their Husbands?)
Some states require that couples seek a legal separation for a specific amount of time before they are allowed to file for divorce. If you live in one of these states and wish to get divorced, you’ll need to file for a legal separation first. We recommend speaking to a divorce attorney in your state to better understand your local laws.
Legal Separation vs. Divorce
Is legal separation the right choice for you? Every couple’s circumstances are different. Couples may decide to separate on their own to see if a little space can help them work out their differences. Others may appreciate the legal protections and court assistance that a legal separation offers. Yet others may be legally required to seek a legal separation before they can get divorced.
This article is reprinted with permission from the Women's Institute for Financial Education (WIFE.org), creator of the Second Saturday Divorce Workshops. Founded in 1988, WIFE is a non-profit organization dedicated to providing financial education for women. Copyright 2019