One of the major differences between a divorce and separation is one is permanent and the other is somewhat temporary. Divorce is considered the permanent legal way to terminate a marriage while separation is still temporary and you are still legally married. Separation allows for that space to consider what the next options are for the marriage unlike divorce which ultimately has no basis of reconciliation.

Once a divorce judgement is finalized, issues of child custody, child support, spousal support and division of marital property will come into play. During a separation, although these issues are contemplated with there is still some more time for deciding on them. Below are some standard differences that are notable in a divorce versus a separation:

  • Health care and other benefits – During a legal separation the couple may still be able to have the same health care plan and the social security benefits obtained while being married but once a divorce is finalized these benefits are terminated;
  • Marital status – A legal separation still allows you to claim your marital status, meaning that you are not free to marry another but once you are divorced, you can remarry again;
  • Decision-making – Legally separated spouses are still considered next of kin and can still make the necessary medical or financial decisions for the other however, a divorced couple are not considered next of kin;
  • Debts or liabilities – Spouses can still be responsible for the debt of the other in a legal separation but after a divorce the debts are handled during the dissolution process;
  • Property rights – Legal separation protects each spouse’s legal rights to property benefits upon the death of the other while a divorce terminates these rights and;
  • Remarriage or reconciliation – Divorce is permanent and cannot be undone but reconciliation is much easier with legal separation. After a divorce, you need to remarry if you want a legal reunification.

What Does a Legal Separation Imply?

There are different types of separation which include trial, permanent, and legal. Generally, a trial separation may lead to a permanent separation. However, even a permanent separation does not have the legal effect unless the couple files for legal separation. It is important to note that the court typically will not view property accumulated by either spouse during a permanent separation as marital property. This is one of the main differences distinguishing trial separation and living apart from permanent separation.

A key thing to remember is that a separation does not have legal effect unless you request a court to recognize it as a legal separation. While most couples do prefer seeking a standard divorce, legal separation is still an option to consider while contemplating divorce. Couples have different values about marriage and what married life should be like. Therefore, legal separation allows them the time they need to determine if divorce is the right option for them.

Furthermore in some states, a separation is required before you can even file for a divorce under certain grounds. There is often a waiting period of six months or one year depending on which state you reside. During this waiting period you live separate and apart to determine if it is necessary to get a divorce. Moreover, in other states, a legal separation can become the grounds for a divorce. You can resolve all of the issues when you draft your separation agreement, live under it for a period of time and that agreement then converts to a divorce decree after a period of time.

Why Should I Consider Separation Instead of a Divorce?

Some cultures or religions prefer a separation versus a divorce. It is a matter of personal choice among the couple. A legal separation still continues the marriage unlike the divorce which completely terminates the relationship. Choosing between a legal separation and a divorce is often a matter of personal preference. Therefore, if you get a legal separation, you are still entitled to some benefits, such as social security and pensions that provide payments to surviving spouses.

A legal separation can be the first step on the way to divorce. It allows a couple to resolve all the important issues in their lives while keeping the marriage intact and determine if a divorce is the right option for them. A legal separation can be reversible. Once you get divorced, it is not reversible. Legal separations may also be an easier adjustment for your children, because you are still considered married and still intact as a family unit.

How Do the Processes Differ from Obtaining a Separation Versus a Separation?

In order to get a separation from your spouse, you need to first determine which type of separation to file. The different types of legal separation can determine your course of path in the situation. Usually couples going through marital problems will contemplate either a legal separation or divorce. In general, spouses can separate at any time for any length of time and no court involvement is required. If you and your spouse are living in two different residences, you are considered separated. A legal separation happens when the court formally declares you are separated.

However, not all states offer legal separation as an option, therefore researching your local state laws with the help of a legal expert is strongly advised. If legal separation is permitted in your state, you can file to get a legal separation by submitting a separation agreement. Additionally, you can obtain one by filing for a separation similarly as filing for a divorce. Some cases may even go to trial if needed.

Divorce and legal separation are both valid and legal options to couples considering resolving a failing marriage. It is important to invest some time into your thought process for choosing either option for your marriage. Some couples may choose to separate without a court order as it is simpler and avoids costly legal proceedings. Recently, there has been a growing trend in informal separations and no-fault divorces and the formal legal separation process is becoming increasingly rare.

Why Should I Consider Divorce Instead of Separation?

The following reasons why you may consider divorce or separation:

  • If you can try, file an uncontested divorce because that way the both parties are in agreement with a settlement and file together; a contested divorce or default divorce is more expensive, drawn out and complicated;
  • Do some planning before approaching your spouse about a divorce or separation, think about where you will be living, how much money you will need and how shared assets will be split. Child custody arrangements may become stressful;
  • Start by financially arranging for a divorce because it is expensive in order to cover all the eventual fees that come with the proceedings and the cost of potentially moving into a new home;
  • It is important to organize the financial paperwork both physically and digitally, before filing for a divorce because it is time consuming and stressful to do later on and;
  • Seek out help if needed from experienced family attorneys in the area especially if the divorce is being contested;

Should I Hire A Divorce Lawyer?

There are many reasons why a couple may consider divorce versus a legal separation. Both have their advantages and disadvantages. It is important to be aware of the personal situation and make a judgment accordingly. Depending on which state you reside, legal separation and divorce laws may vary. Therefore, it may be useful to contact a local divorce lawyer to assist with whichever option you choose to terminate your marriage.