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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.