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Divorce | Family

What Are the Differences Between a Legal Separation and a Divorce?

7 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

When couples end their marriage, the two main options are a legal separation or a divorce. A legal separation is a court order that establishes each spouse’s rights and responsibilities while living apart. It outlines assets and liabilities division and issues such as spousal support (like spouse’s health care benefits), child custody, and visitation. Unlike a divorce, however, a legal separation does not terminate the marital relationship or allow either party to remarry.

In the case of a divorce, the marriage ends, and both parties are legally allowed to remarry. A divorce also resolves all matters related to child custody and support, alimony, and the division of assets and debts.

Are you uncertain of the similarities and differences between a legal separation and divorce? If so, it is essential to speak with an Unbundled Attorney. Your family law lawyer will be able to explain how the process works as well as any prerequisites that come along with it while providing invaluable counsel about your marital property rights and responsibilities.

Legal Separation

A legal separation allows couples to end their marriage without divorcing, which is a viable option for couples who do not wish to dissolve their marriage but want some form of separation. Court involvement in divorce and legal separation cases can vary greatly.

Separation Agreement

A Separation Agreement is a legally binding document that outlines the terms of a separation between two parties. A legal separation agreement may feature when people are separating but not necessarily divorcing or ending a civil union (remain legally married).

Separation Agreements often settle issues such as child custody, visitation rights, property division, debts, tax benefits, spousal or child support, health insurance benefits, and other related matters.

Legal Separations

Legal separations can be a complex and emotional process, but they do have the potential to provide couples with an alternate solution to ending their marital union. The other spouse’s religious reasons for separation or divorce may also come into play.

However, religious beliefs are often at odds with the law, so this decision is not always easy. For instance, when a spouse’s religion prohibits divorce or separation.

A spouse can legally separate instead of divorce if they want a formal change in the marital relationship but do not wish to end it entirely.

The waiting period for a spouse to be eligible to file for a legal separation is typically one year. However, to be sure, check your state law to check on the waiting period. Under legal separation, the spouses remain legally separated indefinitely. A court can decide custody and support order issues in a legal separation

Differentiating Between Divorce and Separation

Divorce usually comes across as a “final solution” to marital problems and is often a difficult decision for couples.

Separation is less formal than divorce but can involve legal agreements between the parties. It is a period of living apart, wherein both spouses are legally married but not living together. When divorce ends a marriage, it can have serious implications for both spouses.

Trial Separation

A trial separation (informal separation) is when married couples begin separate lives to determine if they can solve their problems. During this time, each partner will have space and time to reflect on the relationship.

Legal Separation vs Divorce

Two key differences between divorce and legal separation are property rights and debt obligations.

A divorce decree will divide marital property and settle debts. In contrast, in a legal separation, the marital assets remain separate. However, both spouses still have certain economic obligations to each other such as health insurance advantages for a separated spouse.

Legal separation leaves the marriage intact, while divorce legally ends the union. A financial advisor can help divorcees or those considering divorce understand the implications of divorce versus legal separation.

Legal Separation vs Trial Separation

The required separation period for spouse separation differs from legal and trial separation. A spouse who chooses to get a legal separation must be separated from their spouse for a minimum of one year before the spouse can file for a divorce.

On the other hand, a spouse who chooses to pursue a trial separation does not need an official separation period. Furthermore, there are no legal agreements, judges, or lawyers involved. 

Legal Separation vs a Permanent Separation

Medical or financial decisions by one spouse without consulting the other spouse may not suffice under a legal separation as the finances might be joint, and the other spouse might be the next of kin if a medical procedure needs consent.

However, it’s different from a permanent separation where spouses can decide independently of each other without consequence.

A Permanent Separation Agreement

It is a document that outlines the terms of the agreement related to finances, assets and property, child custody, and other matters between divorcing parties.

Implications of Debts and Property Obtained in Marriage While Undergoing a Legal Separation

Legally separated spouses are still married under the eyes of the law. Any new debt or property a spouse obtains while legally separated will still be considered marital property.

Weighing the Advantages and Disadvantages of Separating Before a Legal Divorce

The advantages of separating include the following:

  • More time to work on communication and problem-solving skills
  • Avoiding the expensive and time-consuming process of getting a legal divorce
  • Not having to face the stigma associated with divorce
  • Being able to live separately without the legal implications of a divorce and potentially
  • Reconciliation if both partners are willing to work out their issues.

On the other hand, there are also potential drawbacks to separating before a legal divorce including:

  • Not having any legally binding documents spelling out the terms of separation, which could cause confusion
  • Not having legal protections against domestic violence or abuse
  • Lack of access to marital property acquired, assets, or funds in joint ownership during the marital union and
  • Lack of legal guidance if couples decide to pursue a divorce in the future and one doesn’t engage an attorney.

Are You Considering a Separation? Here are Some Things to Avoid Doing During this Process

  • Avoid taking legal action against your partner without exploring other options. Going to court should be a last resort devoid of impulse.
  • Desist from making decisions on account of emotion alone. When emotions run high, they can cloud your judgment and lead to rash decisions you may regret later.
  • Don’t reveal private details of your relationship to friends and family. Even if you are going through a difficult time, it is vital to remember that what happens between you and your partner should stay private.
  • Avoid involving children in the separation process. It is crucial to keep them out of the conflict and protect them from potential trauma.

When is the Right Time to File for Divorce?

When deciding to file for divorce, it’s essential to consider both the short-term and long-term implications of a divorce proceeding.

Sometimes, couples may choose to remain married for financial reasons or because of children. In other cases, spouses might be ready to move on and start filing for divorce.

Are Payments for Alimony or Child Support Necessary During a Period of Separation?

Depending on the circumstances, alimony or child support payments may be necessary during separation. The court will review both parties’ financial situation and needs before making any determinations regarding these payments.

What are the Possible Consequences of Permanent Separation Without a Divorce?

The parties are still considered married and must abide by the same laws and regulations as any other married couple. They will be subject to the same rules regarding taxes, social security benefits, medical decisions, wills, and estates.

Is it More Beneficial to Seek a Divorce or Opt for a Legal Separation?

Before you make the life-altering decision to pursue a divorce, carefully weigh both the advantages and disadvantages of separation. A divorce order issued by the court is the only way to end a marital union legally.

All couples can benefit from exploring these pros and cons before deciding whether or not they wish to separate legally.

An unbundled attorneys offer full representation, or a more cost-effective limited representation option that ranges from just $500 to $1,500.

Although unbundled services are not ideal for every situation, they can be highly advantageous if you require minimal attorney assistance. An attorney in family law can help you understand your legal rights, protect your assets and legal consequences and get through this tough time as quickly and painlessly as possible.

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