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Legal Separation and Divorce - What's the difference?

Legal separation vs divorce: what's the difference? Read on to learn about the advantages of each, and a critical difference between the two.

evident Editorial Team
August 30, 2023
Couple considering divorce or legal separation seated on bench.

Marriage is more than just a romantic commitment; it is a legal commitment as well. So when it is no longer in your best interests to remain in a marriage, you should evaluate the legal options available to you. 

Legal separation and divorce are both formal ways to end a marriage. (Check out our article on Annulment vs. Divorce to understand the difference between those processes).

This article will explain the differences between legal separation and divorce, and then provide the framework to help you determine which is the best option for you.

Key Takeaways

What is legal separation?

Legal separation does not legally end a marriage. Instead, legal separation allows a married couple to live separate lives but remain legally married under the law. 

While legal separation is not available in all states, the process is generally the same for all states that do have it:

  • To initiate a separation, a couple first needs to verify that they fulfill the residency requirements of the state in which they live. 
  • Next, the couple must file a petition for legal separation in a local court. The petition will include a filing fee that varies between states and sometimes even counties.
  • Along with the petition paperwork, you must draft a legal separation agreement, which should include all the terms of the separation. 
  • If you and your spouse do not agree on the terms of the separation agreement, then you’ll need to work with your spouse to negotiate and compromise until you do agree on the terms.
  • Once both spouses agree on the terms of the separation agreement, the agreement must be signed and notarized. 

The substance of separation agreements is quite similar to divorce settlement agreements. It should include:

  • division of marital property and assets
  • separation maintenance (which is basically the equivalent of alimony, also referred to as spousal support or spousal maintenance)
  • child custody and child visitation rights, if there are children
  • child support
  • finances, including any benefits from welfare programs
  • rules for future romantic relationships (as the couple is still married)

What is divorce, and how is divorce different from legal separation?

A key difference between divorce and legal separations is that a divorce decree formally ends the marriage.

A divorce settlement agreement covers all the same things included in a separation agreement, though, and the processes are similar in several ways.

Things to note about the divorce process include:

  • Filing the initial paperwork for divorce may have more restrictions than petitioning for a legal separation. Some states require you and your spouse to live separately before filing for a divorce. 
  • The petition will include personal information from both you and your spouse, information on dependents (if there are any), the grounds for the divorce, and requests involving shared assets. 
  • If the divorce was not a joint decision, you must serve your spouse with the agreement after filing the case in a local court.
  • If your spouse fails to comply within the allotted time, then you (the filing spouse) can seek a default decision in your favor. 

Many aspects of the divorce process can vary based on state laws. Some state laws have a required separation period or waiting period (which does not necessarily have to be legal separation) before filing for divorce. 

Fault vs. No-fault Divorce

There are two types of grounds for divorce to be aware of: fault-based divorce and no-fault divorce. Not all states allow for fault-based divorces, though.

Fault-based divorces require the spouse filing for divorce to prove that the other spouse is “at fault” for the divorce based on a specifically enumerated reason. Examples of reasons people may try for a fault-based divorce include:

  • adultery
  • prison confinement
  • physical or emotional abuse
  • insanity

The filing spouse must prove the alleged fault for the claim to be accepted.

No-fault divorce, on the other hand, is the more common type of divorce. Neither spouse has to prove that the other spouse is to blame for the divorce.

Unfortunately, many divorces are not amicable. The tension within the couple has often reached a point where the spouses can no longer agree on anything, making the divorce process longer and more difficult. While this will require more money in legal fees, it is at that point that divorce is the only option for that spouse. 

So, which one is better, legal separation vs divorce? Each process has different advantages depending on your circumstances, so let’s examine those now.

Advantages of legal separation

So, why get a legal separation instead of a divorce?

Legal separations allow for the marriage to still be recognized under the law, which can make separation more appealing than divorce. Legal separation is a good option for couples who are not sure if their marriage is beyond repair.

Many financial benefits come with marriage, and those would still apply during a legal separation as well. These benefits include:

  • Joint tax filing
  • Insurance coverage and medical benefits under a spouse's health insurance
  • Social welfare benefits from Social Security and military benefits

Note that for cases involving benefits, the couple has to be married for a certain amount of time to receive spousal benefits through their employer.

Legal separation is also a good option for people whose religions have restrictions on divorce. If your religious beliefs do not condone divorce, legal separation still recognizes you as married under the law, but you can live your lives completely separate from one another.

Advantages of divorce

Heart pendant

Divorce is the best option for a couple, or individual spouse, that wants to put a complete end to the marriage. If you are sure of your decision, it would be a waste of resources to legally separate, and then potentially get divorced after that. 

Additionally, divorce is the only option for you if you are interested in getting remarried. As discussed above, legal separation does not actually end a marriage. One of the key differences between divorce and legal separation therefore is that you cannot remarry until your marriage has formally ended.

When you want to have a clean break from your spouse, divorce is the best route to go. If you do not foresee being able to reach an agreement with your spouse, divorce also permits one party to file over the objection of the other spouse. Doing so will potentially prolong the process, but it is an advantage to filing for divorce if you and your spouse are not on the same page.

FAQs about legal separation and divorce

What’s the point of legal separation if it does not end the marriage?

Legally, separation offers the option of living a life physically removed from your spouse. It is a good option for those whose religion does not permit divorce. 

Legal separation also allows for a couple to change the status of their marriage without the finality of divorce. It leaves room for possible reconciliation. 

Additionally, if neither spouse plans to remarry, they can legally separate and maintain tax benefits as well. 

Is legal separation the only way to separate from your spouse without getting divorced?

No, legal separation is the only way to separate from your spouse with court approval but you can initiate a separation on your own that does not have to go through the formal process with the courts.

Couples often take this approach when they do not want to make a permanent decision right away, often called a trial separation.

But again, keep in mind that a trial separation has no legal impact on your marital status (and neither does a permanent separation, for that matter).

This means that things like your taxes, shared property and debts, and benefits such as healthcare are treated as if you are still married, because you do in fact remain married.

Does legal separation have a time limit?

You can remain legally separated for the rest of your lives if that is what you and your spouse choose. However, that does restrict you in the ways previously discussed, such as not being able to remarry a different partner. 

Can you get a divorce after being legally separated?

Yes, these actions are not exclusive. You can be legally separated and then go to court to get divorced after that.

But note it doesn’t work the other way around -- a couple cannot get divorced and then decide they would rather be legally separated instead. At that point, a court order has been issued and the marriage has been dissolved, so they would have to officially get married again to change their relationship status.

Is it financially better to be legally separated?

Married couples share assets, incomes, and file joint taxes (unless they have formally signed an agreement stating otherwise). Some tax benefits come with being married, but it truly depends on the individual circumstances of each spouse, and how they would like to make their medical or financial decisions, to determine if staying financially attached is something that will help both of them.

The bottom line on legal separation vs divorce

Legal separation and divorce are the two main ways to formally change a marriage.

Legal separation does not dissolve the marriage as divorce does, but legal separation does allow the two spouses to live separate lives. Legal separation offers an alternative to divorce, but it also leaves room for the potential of reconciling the relationship.  Divorce, on the other hand, legally ends the marriage. 

Marriage is not just emotionally committing yourself to someone; it is financially committing yourself to them as well, which is one major consideration when deciding between legal separation and divorce. It is best to seek guidance from a family law attorney when deciding which option is best for your circumstances.

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