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Legal Separation vs Divorce: What’s the difference?

Updated: Feb 7

There are plenty of reasons to elect for legal separation instead of divorce. Understand the difference to figure out what’s right for you.

The breakdown of a marriage can be incredibly stressful. Trying to figure out what’s next might feel like an impossible decision. However, once it becomes clear your marriage isn’t working out, you face a choice: whether to get a legal separation or a divorce.


There are several reasons why some spouses choose to separate, including religious or personal beliefs that don’t allow divorce. Divorce is also expensive, often negatively impacting a family’s finances. Or a separation may be a stepping stone toward divorce, allowing both spouses time to reach a divorce agreement.


In addition, some states, such as Louisiana, require spouses to be separated for a certain amount of time before divorcing. On the other hand, the following states don’t permit legal separation:

  • Delaware

  • Florida

  • Georgia

  • Mississippi

  • Pennsylvania

  • Texas

As you can see, there’s a lot to consider. To help, this article breaks down the differences between divorce and legal separation. That way you can decide which is best for you and your family.


What is Separation?

Separation means that spouses can live separate lives, however, they remain legally married and cannot remarry. They also retain certain legal rights.


There are several types of separation, including trial separation, permanent separation and legal separation. Each type of separation has different requirements, all of which can potentially affect your legal rights.


Trial Separation

Couples who wish to live apart for a period of time while they work on repairing their relationship and who have no intention to immediately file for divorce often choose a trial separation.


You might want to take advantage of this option if you’re committed to trying to reconcile with your spouse but need a break from everyday issues that have strained your marriage.


Trial separation isn’t permanent and requires both spouses to be on the same page regarding a timeframe and rules for the separation period. It has no legal impact on your marriage, so any property acquired during this time is subject to the same laws as that acquired during the marriage.

Permanent Separation

Couples who have no hope of reconciliation and choose to go their separate ways but aren’t yet divorced may opt for a permanent separation.


This type of separation has more legal consequences than trial separation because most states distinguish between your and your spouse’s assets, debts and incomes once the separation begins. If you decide to go this route, talk with an attorney, because each state has different rules for this process. Also keep track of the date your separation started and be able to verify it if necessary.


This date can impact your future legal separation or divorce case. Remember that until you file a legal document with the court, your permanent separation isn’t a legal one.


Legal Separation

Legal separation is the formal, legally binding version of permanent separation. Spouses sign and submit a separation agreement to court for approval, and they live separate lives.


This version of separation affects the division of property, child custody, child support and spousal support. Any financial obligations incurred after the separation is made legally binding through a final order or judgment are the sole responsibility of the spouse who made the obligation.


What’s the Point of Legal Separation?

Legal separation allows spouses an opportunity to resolve the important issues in their lives while keeping the marriage intact until they decide if they want to proceed with a divorce.


How does legal separation protect you?

While legal separation allows each spouse to move on with their life independently, legally separated couples may be able to continue providing health care, social security and other benefits to each other. If a spouse has been ordered by the court to pay spousal or child support and doesn’t comply with the payments, they can be held in contempt for violating the order, resulting in fines and other penalties.


Separation Agreements

If you and your spouse decide that living apart is the best option, but you don’t feel like you’ve reached the point of filing for a divorce, you may want to draw up a separation agreement.


Both spouses sign this legal document. It lists the rules and timeline for the separation and is used to divide your assets and responsibilities for the duration of the separation period.


If at any point you decide to proceed toward divorce, and especially if the divorce is uncontested, you may submit the separation agreement to the court before starting the divorce proceedings. However, each state has different rules for this process, so talk with an attorney.


Differences Between Separation and Divorce

If you’re at the stage where you’re considering legal separation versus divorce, the most important thing to realize is that while a divorce legally terminates your marriage, separation means you’re still legally married.


Though laws differ from state to state, other differences may include:

  • Legal separation allows you to keep your marital status. You can’t remarry unless you get a divorce.

  • Separated spouses are still considered next-of-kin, so they may be able to make financial and medical decisions.

  • Health care and social security benefits remain intact for separated spouses, while some of those benefits change or terminate upon divorce.

  • Legally separated spouses may still be responsible for each other’s debts, whereas that responsibility is resolved during divorce proceedings.

  • If one spouse dies during a legal separation, the surviving spouse preserves legal rights to any of their property benefits. A divorce terminates those rights.

Do I have to pay alimony or child support while I’m separated?

Depending on which state you live in and the specifics of your situation, you may be obligated to pay temporary alimony or child support while separated.


Required Separation before Divorce

Some states and districts require a separation period (sometimes referred to as a “waiting period”) before allowing couples to either file for divorce or receive a divorce decree. The minimum duration of these waiting periods depends on the state. Consult an attorney to verify the rules in your state.


Pros and Cons of Separation before Divorce

If you’ve read all of the above but are still uncertain where you stand on legal separation versus divorce, below are lists of the main pros and cons of trial separation to consider.


Pros

  • Separation gives you and your spouse time to consider if you can and want to reconcile.

  • You have the option to retract the separation without involving the court.

  • One partner can remain covered by their spouse’s health and insurance policies.

  • You and your spouse can still file taxes jointly, taking advantage of the tax benefits enjoyed by married couples.

  • If you’ve been married for more than 10 years, you can retain access to important social security benefits.

  • In some cases, it’s cheaper to file for legal separation than to go through a divorce.

  • You can legally date other people.

  • You can live separate lives, even if your religion prohibits divorce.

Cons

  • You’ll still have to go through a divorce proceeding and pay for it if you decide to legally end the marriage.

  • Your tax deductions may decrease.

  • You may not be able to keep all the health benefits through your separated spouse if their plan is employer-sponsored.

How do I get a Separation?

This is one of the main differences between separation and legal separation.


For trial and permanent separations, both spouses need to agree to live separately.


Although not required, it’s a good idea to create an agreement regarding the rules of your separation. That agreement, even if informal, will help if you decide to make your separation legal or pursue a divorce.


If you want to legally separate from your spouse, in most states you can do so by filing a petition in family court. How the separation becomes binding varies from state to state. Some require a trial or stipulated judgment, while others are final once a judge grants your petition and issues an order covering the specifics of property division as well as spousal and child support.


Can you be legally separated forever?

Most states that allow legal separation allow spouses to remain legally separated indefinitely, as long as both spouses agree. However, in some states, courts put an end date on a legal separation.


Get help with divorce: Texas Uncontested Divorce


Talk to a Lawyer

No matter where you stand on the “separation vs divorce” issue and the specifics of your situation, consult with a family law lawyer. Each state has its own laws regarding property and debt divisions, so it’s crucial to ensure that you have all the information and facts you need before making your final decision.

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