A legal separation is basically a court-approved separation, and often involves a court order that defines the legal rights and obligations of the parties involved. Legal separation is different from a more informal or “trial” separation because the terms of the legal separation must be reviewed and approved by the court. Legal separation does not end the marriage or domestic partnership.

Sometimes, spouses or partners who seek legal separation might not necessarily want to get a divorce. Instead, they intend to live apart and decide on the best way to handle money, property, and parenting issues while separated. However, it is important to note that separated spouses, while living separate and apart from one another, are not free to remarry. They are still legally married to their spouse, even during separation, until a divorce decree has been issued by the court.

Common separation issues dealt with in court include matters regarding:

What are the Benefits of Legal Separation?

Legal separation provides an avenue for spouses to live separate and apart while still remaining married for the time being. In many cases, the parties take this time of separation to decide on money, property, and parenting issues without the pressure of a divorce case. There are several advantages to pursuing a legal separation, which the parties can take advantage of. 

For example some advantages include:

  • Spouses can still enjoy the benefits of the marital relationship, such as continuing health insurance benefits or military benefits;
  • Remaining legally married for 10 years can qualify couples for certain social security benefits;
  • In some cases, both parties take the time of separation to attend counseling and attempt to resolve their disputes and differences before making a final decision of whether to resume the marriage or file for a formal divorce;
  • Some religions do not allow or recognize divorce, and legal separation allows religious couples to live separate lives while remaining legally married; and
  • Couples who are uncertain about filing for a formal divorce may seek legal separation to resolve an immediate problem in the relationship.

There may also be other incentives to remain married instead of filing for formal divorce, such as tax incentives.

What are the Disadvantages of Legal Separation?

While legal separation does have its benefits, there are also some disadvantages. When you are legally separated, you can still be responsible or liable for your spouse’s debts, even though you are living apart from one another. The best way to resolve issues like this one is to create a legal separation agreement.

A legal separation agreement is a document that outlines the rights and responsibilities of the parties during the separation period. It can cover a variety of issues that may come up during the separation, from child visitation schedules to the debts of each spouse and property ownership rights. While the parties may simply agree among themselves on how to handle these matters without involving the courts, having a written agreement can make it easier to enforce the terms of the agreement in case disputes arise.

Is Legal Separation the Same as Divorce?

Legal separation is not the same thing as a divorce, and is not always a prerequisite or precursor to divorce. Just because a couple is undergoing a legal separation is not a guarantee that they will decide to file for divorce, and a couple can sometimes file for divorce without going through an official legal separation. 

Legally separated couples may leave the door open for reunification and resuming the marriage. Legal separation enables couples to live separately, but remain legally married. The legal separation acts to protect the parties’ interests as a legally married couple until a formal decision is made whether to file for divorce.

A legal separation does not end a marriage. It merely indicates that the parties are living apart for a while. A formal divorce or dissolution of marriage, however, ends the marriage or domestic partnership. When parties are legally separated, they are not eligible to remarry another person because they are still legally married to their spouse. However, if the parties are divorced, they regain their legal status as single and unmarried, which gives them the right to remarry another person if they so desire.

Should I Hire a Lawyer for My Legal Separation?

If you are considering a legal separation, it is in your best interests to discuss your situation with an experienced family law attorney. No two relationships are the same, and no two legal separations are the same. The choice between divorce and legal separation can be complicated and emotional, as well. Each state has its own specific rules when it comes to separation and divorce. Also, there are several factors that will need to be considered in order to make sure that the legal separation period is being effectively used. Your attorney can discuss the benefits and drawbacks to the situation with you, and help you make an informed decision on the best way to proceed. 

If you need a written separation agreement, your attorney can also help you draft an effective agreement that establishes all rights and responsibilities concerning the children and each spouse’s debts and assets. Having an attorney on your side will help you understand and protect your rights in the middle of a situation that can become emotional.