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Divorce vs. Separation

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What's the Difference Between Separation and Divorce?

The difference between separation and divorce are:

  • Legal Separation: In a legal separation, the parties are still married and there will be a court order that mandates the rights and duties of the parties while they are still married, but living apart. There are also different types of separation such as trial separation, permanent separation, legal separation, and just living apart. In a legal separation, your marriage has not formally ended.
  • Divorce: A divorce is a court judgment that ends a marriage. Divorce also has other issues involved in the process, such as financial implications, asset control, alimony, and child custody. The court decides these issues in a divorce, while in a legal separation, the couple has to agree upon them. In a divorce, you will no longer be married to each other and you are free to remarry.

When to Pursue Separation vs. Divorce?

The reasons for pursuing separation versus divorce will  vary in each situation. Legally speaking, there are important distinctions between the two. Some couples consider separation in the following situations:

  • When there is still the possibility of the couple working out differences
  • If there are strong religious convictions involved that would make divorce complicated or problematic
  • If divorce laws of the state or jurisdiction are too restrictive
  • If the couple no longer wants to accumulate assets as a couple (in some cases, property is kept separate after separation occurs)
  • The couple wishes to retain a married status for certain financial considerations, such as tax or health insurance purposes

Divorce may be considered in the following situations:

  • The couple is no longer thinking about resolving their differences
  • If there are going to be issues with child custody and visitation (for example if child abuse or domestic violence is an issue)
  • One of the partner wishes to marry a different person
  • A person besides the biological parent is seeking legal custody of a child

How Do I Get a Separation?

There are many different types of separation and ways to obtain them. A couple can get a trial separation by the court if the couple wants to see if divorce or legal separation is something they actually want. Many couples do this when they have marital problems. A legal separation occurs when the court formally declares you separated. During a legal separation, a spouse would still be entitled to some community property benefits.

If legal separation is allowed in your state, you can get a legal separation by submitting a separation agreement. You can also get a legal separation by filing for one just how you would file for a divorce. Couples can also obtain a legal separation through trial if they do not agree on one.

What Are the Benefits of Separation?

Separation can be beneficial for any couple that is going through marital problems:

  • They have religious or ethical beliefs that object them from getting divorced.
  • The couple believes that they eventually can fix their marriage problems, but feel the need to live apart for some time.
  • The couple does not want to live together during the waiting period required in some states before their divorce is finalized.
  • Separation can provide tax benefits by stabilizing the couple's financial situation before their divorce is finalized.
  • It allows one spouse to qualify for benefits such as social security or other pension benefits of the other spouse before legally divorcing.

Do I Need a Lawyer for Assistance With Separation or Divorce?

Understanding whether separation or divorce is right for you can be challenging.  You’ll need to consider your own needs, the needs of your partner, and the interests of any children that may be involved.  Also, you’ll need to have some basic understanding of the laws governing separation and divorce in your area. You may need to contact a family lawyer if you need legal advice on these matters, and if you will be filing paperwork in court.  Your lawyer can also be present during the hearings to provide you with assistance.

Photo of page author Ki Akhbari

, LegalMatch Legal Writer

Last Modified: 05-26-2016 11:57 AM PDT

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