Legal Separation vs. Divorce

A legal separation, is a court order that mandates the rights and duties of a couple while they are still married, but living apart; in a divorce, the spouses are no longer married. Legal separations aren't too common, but can be helpful especially while the spouses work through any personal or financial issues affecting the marriage.

Differences between Separation and Divorce

There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other key differences include:

  • Health care and other benefits: Legal separation allows for the retention of health care and other benefits such as certain social security benefits that terminate with a divorce.
  • Marital status: Legal separation allows you to retain your marital status, but you're not free to marry another; once you're divorced, you can remarry.
  • Decision-making: spouses are still considered next of kin and can still make medical or financial decisions for the other; divorces spouses aren't considered next of kin.
  • Debts/liabilities: spouse still may be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
  • Property rights: Legal separation preserves each spouse's legal rights to the property benefits upon the death of the other, but a divorce extinguishes these rights.
  • Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.

Similarities Between Legal Separation and Divorce

Just as it would in divorce proceedings, in the proceedings for legal separation, the court decides the following:

Living Separately and Impact on Property Division

Sometimes, circumstances arise that lead to couples living apart with no intent, one way or the other, to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on what state the couple lives in. Some states determine the property classification based on whether either spouse has the intent to end the marriage. Couples can also have a trial separation, but it has no real legal effect; a trial separation is viewed only as a period of time in the couple's marriage. Any property or debt acquired during a trial separation is still considered to be acquired during the marriage, and hence, probably marital property.

Permanent Separation

Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has actually filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for things necessary for the family, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the care of the children.

Get Legal Help with Your Legal Separation or Divorce

Because each state has its own laws regarding property and debt division, it's important to check the laws where you live. These determinations can become quite convoluted due to the changing of the couple's circumstances, so it's a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation vs. a divorce.

Next Steps

Contact a qualified divorce attorney to make sure your rights are protected.

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