A marital separation is when a married couple decides to legally separate and live separate lives, this often happens while considering a divorce. Some couples may prefer a legal separation instead of a divorce due to religious beliefs, tax issues or other financial matters. 

Generally, a legal separation is a court-ordered arrangement whereby a married couple lives apart.  A legal separation can be an alternative to a divorce when the parties are still deciding on how to proceed and process their marital issues and want to establish financial boundaries or responsibilities. Some of these issues include separation of assets, custody of dependents, and child support. 

There are different types of marital separation which include trial, meaning you are not living with your spouse, but have not made a final decision to divorce. Another one is permanent, meaning that you are not living with your spouse, but you do intend to divorce. It is important to keep in mind that the division and ownership of the property and income can be affected by what type of separation you file for and where you reside. 

Moreover, many couples may separate without the intention to permanently split. They may use a trial separation to work towards a reconciliation. Accordingly, in these cases, the legal rights and obligations remain the same regarding children, property and debts as they would in a marriage. However, Issues dealing with division of marital property or child support payment amounts might be subject to agreement that could be included in a court order.

What Happens During a Marital Separation?

There are many similarities in a legal separation and a divorce. Similarly in divorce, the couples who are separating generally need to divide the assets that they acquired during the marriage, make decisions regarding child custody and any spousal support matters. In a legal separation, a couple can bring these issues to the court if it becomes necessary to do so. Most cases, the courts may use similar guidelines they use in divorce to make those determinations for a legal separation. 

What is the Difference Between Divorce and Marital Separation? 

A divorce legally terminates a marriage and you are allowed to remarry. However, a legal separation does not end the marriage and you cannot remarry. Another difference is that if you obtain a divorce and change your mind, you would need to remarry your spouse in order to be considered married again. However, with a legal separation, the couple simply needs to submit a request to the court in order to be considered a married couple again. 

Divorce for a legally separated couple may be expedited because they are already in the separation process or were considering a divorce. Therefore, the divorce after this process may serve as a formality to terminate the marriage legally. A court approved separation will not end a marriage. Though rights and obligations of each side are clarified under the separation order, the marriage still legally exists under the law. One of the pros of obtaining a legal separation is that if the couple changes their mind, they can easily return to their life together in comparison to getting a divorce. Rather, they would only need to submit a request to resume the marriage to the court. 

Why Should You Consider Marital Separation?

There are many reasons why a couple may consider a marital separation instead of a divorce. Below are some reasons why it would be possible:

  • Either one of the couple belong to a religion that does not allow or look unfavorably upon divorce and a legal separation allows the parties to go on with their lives separately without violating their religious beliefs; 
  • A couple may choose legal separation because they are still not convinced that divorce is the best option for them at the moment; 
  • Legal separation is different because it allows flexibility for the couple to live apart and not change their legal status in front of the law to return to their life as a married couple if needed; 
  • A legal separation forces the couple to make decisions about the same matters they would need to if they were filing for a divorce, like custody and asset division and; 
  • Financial costs may also play a big role for the couple in choosing divorce over legal separation. There may be additional marital benefits being shared by both that would otherwise not be present if the couple divorced.  

What are the Benefits of a Marital Separation? 

Legal separation draws  couples who do not necessarily want to divorce, but who will live separately and want matters such as child support, child custody and property division to be clarified legally. The formalized separation typically applies to couples who may permanently separate, rather than a temporary trial separation. Common reasons a couple may want to separate, rather than divorce, include the financial benefits of remaining married such as tax incentives and religious beliefs which may conflict with divorce as mentioned above.

Additionally, couples can have similar benefits of legal clarity like from a divorce order. Property rights between the couples are divided up, as are child custody, child support and spousal support rights and obligations. While the spouses can simply agree to such matters without court involvement, obtaining a court approved separation makes it easier to enforce these rights in case disputes arise later on in the process. 

The grounds for legal separation typically are the same as the state grounds for divorce and can include the following: incompatibility, abandonment, adultery and cruelty. Similarly as in a divorce, the child custody, child support, and spousal support conditions can only be modified through a court approval.

Staying married may have other tax benefits that would not be available if the spouse had divorced. Furthermore, the law favors married couples and allows for further state benefits that could not be taken advantage of if the couple divorced. Furthermore, remaining married for at least 10 years means the ability to take advantage of certain spousal social security benefits. For example, if at retirement, your spouse will draw more social security than you, it is beneficial to remain married for a minimum of 10 years in order to gain a larger sum by drawing on your spouse’s social security retirement. 

In spite of the pain from a split, in some cases a legal separation is more feasible than a divorce because a legal separation is temporary while a divorce is permanent. Some couples legally separate when trial separations do not work out. For some, legal separation may be the final chance or last attempt at saving their marriage. Additionally, a legal separation is often more cost-effective than a divorce, and many parents have found that their children are better able to adjust to a divorce if they legally separate first.

Should I Contact a Family Lawyer?

If you or your spouse is considering a marital separation, it is important to figure out if legally and financially it is the right option for you. It can get complicated for property division, child support and spousal support. Therefore, it is advised to seek out the local state family lawyer to assist with the matters. Your attorney can inform you of your legal rights and represent you in court during legal proceedings.