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. Although it is not an actual divorce, it is often one of the first steps that a married couple takes when they are deciding whether or not to end their marriage. 

Similar to a divorce, however, legal separation must be granted by a court order before it can be officially recognized by the state. While a couple may form a contract for legal separation outside of a courtroom, the separation will not be finalized until a judge formally agrees to recognize their agreement.  

The primary difference between legal separation and a divorce is that legal separation does not terminate the marriage, while divorce does. Also, the parties to a separation are not permitted to remarry because they are still considered to be married in the eyes of the law. 

What are Some Benefits of Legal Separation?

Like most major decisions in life, legal separation comes with many advantages and disadvantages. On the plus side, couples may be drawn to the idea of legal separation for a variety of reasons. Some of these benefits include that:

  • The couple may hope that they will eventually be able to fix their marital problems, but might feel that they need to spend some time living apart first in order to resolve them;  
  • The couple could have religious or ethical objections to getting a divorce;
  • They might not want to live together during the waiting period that is required in some states (usually, six months), before their divorce can be finalized; 
  • Being only separated, as opposed to divorced, typically permits one spouse to continue receiving insurance coverage through the other spouse’s provider;
  • Separation can provide some tax benefits by stabilizing the couple’s financial situation before their divorce is granted; 
  • Legal separation may have been recommended during a marriage counseling session as a way for the couple to attempt to solve their issues before making a final decision to get divorced; and
  • It may allow one spouse to qualify for social security or various pension benefits of the other spouse before legally divorcing.
    • For example, military spouses may want to take advantage of the benefits of the Uniformed Services Former Spouse Protection Act (USFSPA), which requires that the couple be married for at least 10 years.

Other frequently cited benefits involve certain tax incentives that a couple receives when they remain married (e.g., filing joint tax returns). Additionally, if the couple does decide to file for divorce, the same separation agreement may be transformed into their divorce agreement. 

This last reason provides great incentive to contact a lawyer for help when drafting a legal agreement, since it may become the final and complete basis used in a divorce proceeding. 

What are Some Negative Aspects of Legal Separation?

As previously mentioned, while legal separation may offer couples many different advantages, there are some downsides to it that can make getting a divorce or an annulment a much better choice. Some of the negative aspects of legal separation include the following: 

  • Legal separation can be just as emotionally taxing and legally complex as a divorce, especially if the couple cannot reach a compromise for the terms of their separation agreement; 
  • While mentioned above as one of the advantages, not all insurance policies will continue to provide coverage to a spouse in the event of a legal separation;
  • Despite the fact that a couple may be legally separated and living apart, if the couple has joint financial accounts or has entered into a prior agreement together (e.g., a mortgage), each spouse will still have access to those joint accounts and may be held liable for the couple’s payments or unsettled debts. Depending on the state, this can include one spouse’s credit card debts; and 
  • In certain states, couples who are legally separated cannot get remarried or enter into a relationship with someone new.
    •  For instance, in Tennessee, dating someone new while only being legally separated (as opposed to formally divorced) may be considered committing adultery by a court. Thus, if the legal separation turns into a divorce proceeding, it could have an impact on spousal support and property distribution

Lastly, while in some cases a couple may view this as one of the benefits, the legal separation agreement that was created in advance of the legal separation is often used by the court as the basis of the divorce contract. Thus, the couple will become permanently bound by all of the terms contained in the initial separation agreement.

Therefore, whether you view this final reason as an advantage or disadvantage to legal separation, it is important to retain an attorney to draft the separation agreement. This is because depending on your state, it may become the official decree, should you decide to file for divorce. 

Do I Need a Lawyer to Get a Legal Separation?

If you and your spouse are deciding whether to enter into a separation agreement, you should contact a family law attorney. An experienced family law attorney will be able to provide further information about the pros and cons of becoming legally separated, as well as discuss the different laws that apply to legal separations in your state. 

Additionally, an attorney can help you to evaluate your best options, as well as plan ahead in the event that the separation turns into a divorce. They can also answer any questions or concerns that you may have regarding legal separations in general, or specific ones, such as how to continue receiving insurance coverage through your spouse. 

Finally, it is important that both you and your spouse retain separate attorneys to draft and review the separation agreement. This will help to ensure that all of its provisions are fair and that the agreement contains the proper terms that best meet your needs.