To gain a better understanding of the differences between legal separation and divorce, it is first helpful to know each of their basic definitions.

Legal separation, also known as “marital separation,” refers to an agreement that a married couple enters into. It defines how they will manage their affairs and assets while living apart. It is often one of the first steps that a married couple takes when they are deciding whether or not to get a divorce.

Divorce, on the other hand, is the legal termination of a marriage that is usually granted by a court during a divorce proceeding. 

Both depend heavily on the laws of the state in which they are filed in and involve various types that a couple may choose from (e.g., divorce can be either fault-based or no-fault).

What are Some Things to Consider When Deciding Between Whether to Get a Legal Separation or a Divorce?

Knowing the differences between what getting a divorce entails versus the requirements involved with entering into a legal separation agreement, can make deciding which one of them to choose a much easier process. 

In general, the primary difference between legal separation and divorce is that the legal separation does not terminate the marriage, whereas divorce completely ends it. Thus, when a couple is only legally separated, they are still considered to be legally married in the eyes of the law.

A couple that has filed for legal separation can often obtain court orders for various issues. These can include issues such as child custody, visitation rights, and spousal or child support. 

In many cases, a legal separation order or settlement agreement can be used later on by a court during a subsequent divorce proceeding and may serve as the basis of a divorce decree. When this occurs, the date that the couple separated might be a factor that the court takes into account when determining specific legal issues, like how to divide marital property or assets. 

Legal separation does not always lead to filing for a divorce, however, especially in circumstances where the couple has fully reconciled their differences. Other situations where couples will consider being legally separated first before getting a divorce might include:

  • Where religious or ethical principles would interfere with obtaining a divorce;
  • When the divorce laws of a specific jurisdiction are too restrictive; 
  • If a couple no longer wants to accumulate marital property (e.g., in some states, any property acquired after a separation is considered separate property); and
  • When a couple wants to keep their married status to receive certain financial benefits, such as for tax or health insurance purposes.

In contrast, divorce is usually contemplated when the couple no longer wants to resolve their differences. It is also considered if there is an issue that affects a child (e.g., child abuse or domestic violence), or when one or both of the partners wish to marry different people.

These are only some of the factors that people consider when deciding whether to enter into a legal separation agreement or get a divorce. Sometimes the decision might depend on other factors, such as state law requirements and case-by-case scenarios.

How are Legal Separation and Divorce Related?

Legal separation and divorce can often give rise to similar issues. For example, both legal separation and divorce typically include the following requirements:

  • The couple must disclose all of their property and assets to determine how it should or will be divided between the two of them; 
  • The couple may need to file for a court order to receive spousal (alimony) or child support; and
  • If children are involved, the couple may need to determine custody arrangements and create a visitation schedule

Also, legal separation and divorce can have similar consequences in regard to each party’s property. This may be due to the fact that the property distribution methods used during a separation case typically follow state divorce guidelines.

This is especially true in situations where the couple has set up joint accounts, have entered into prior agreements together (e.g., a mortgage), or if they have been operating a business together. 

How Do Legal Separation and Divorce Differ?

Despite having some similarities, legal separation has many aspects that differentiate it from divorce. For example, in a legal separation, one spouse is often allowed to claim benefits from the other spouse because they are still legally married. This can include items such as military-related benefits, filing joint taxes, and some claims involving employment matters.

Additionally, legal separation does not terminate the marriage. Thus, if a couple chooses to reconcile and remain married, they often have the option of filing certain documents to request that the separation order be lifted.

Generally speaking, legal separation tends to be a less expensive arrangement. This is because a couple can still claim marriage benefits with the state. Though financial matters are an important part of life and marriages, it should not be the only factor considered when deciding whether to stay married or not. 

Therefore, it may be beneficial to discuss some of your concerns with an attorney. They can guide you in the proper direction, or at the very least, provide you with legal counsel that can help you to make a better informed decision. 

If I Have Questions Concerning Whether Legal Separation or Divorce is Right for Me, Should I Contact a Lawyer?

The laws applied in a legal separation or divorce proceeding can vary widely from state to state. As such, you might want to consider contacting a local family law attorney for any questions or concerns that you may have regarding legal separation and divorce.

An experienced attorney can counsel you about specific differences between the two and how each of these arrangements could potentially affect your particular situation.

Additionally, an attorney can help you draft any necessary documents, file them in court, negotiate settlement agreements, and if necessary, represent you in the event that you have to appear in court.

Thus, an attorney is a beneficial advocate to have on your side. Not only can they provide you with multiple legal services, but they can also help you to protect your rights and interests.