Is Legal Separation Different from Divorce?

by LegalFix
Posted: April 28, 2023
legal separation

Ending a marriage is never an easy process. In addition to coping with the emotional toll, paperwork, property division, and child custody all need to be worked out with your partner. While legally divorcing is often the solution that couples choose, some states also allow you the option of legal separation as an alternative to divorce. 

What is Legal Separation?

A legal separation is a court order that mandates the rights and duties of a married couple that chooses to live apart from each other. Generally speaking, legally separating spouses will move to different homes and live separate lives. 

Still, there is more to legal separation than simply moving apart. In states that recognize this option, the process for obtaining an order of legal separation is fundamentally similar to that of acquiring a divorce, with a few key differences. 

Similarities Between Divorce and Legal Separation

In addition to the fact that both are legal processes, many aspects of legally separating achieve the same effect as a divorce. Like a divorce, legal separation decouples any finances. Likewise, the court will mandate legal oversight for spousal support, debt management, and child custody and support.  

If you want to be granted legal separation, a court will have to approve your decision and put together a separation agreement to handle the division of assets and responsibilities. 

Differences Between Divorce and Legal Separation

Despite the similarities, there are also a handful of meaningful differences between divorce and legal separation. While a divorce completely dissolves a marriage, a legally separated couple remains married in the eyes of the law. 

This matters for a number of legal matters. For example, technically staying married means that you can continue to file taxes jointly and receive any tax benefits from your marriage. Likewise, you and your partner can still stay on each other’s insurance plans and get benefits from their employer. Staying married may also mean that income earned and property acquired by you and your spouse while you are legally separated will be characterized as community or marital property that is subject to division upon divorce—depending on your state’s laws. 

There are also non-financial ramifications to staying legally married. While you may be living fully apart from your spouse, you won’t be able to legally enter a new marriage without a full divorce. 

Choosing Between Divorce and Legal Separation

There are a few reasons why a couple might choose a legal separation over a divorce. The most common reason is if you and your partner want to spend time apart but are not yet certain if that will be permanent. This option grants you a greater degree of flexibility in reconciliation. If you and your partner decide that you do want to be together again, your order of separation can simply be reversed. A divorce, on the other hand, is more final. To be legally together again, you would need to get formally remarried.  

The other main reason why you might consider opting for legal separation is for insurance, tax, or military benefit purposes. You may not want to live or be with your spouse romantically anymore, but sometimes it can be the best-case scenario for both parties to continue sharing benefits and coverage. 

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