Legal Separation Vs. Divorce: What to Know

by Bridget Coila
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Ending a marriage can be complicated, and some people choose legal separation instead of (or before) committing to an actual divorce.

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The specific laws related to separation and divorce may vary by state, with some states requiring a legal separation before a divorce can be finalized.

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What Is the Definition of Legal Separation?

A legal separation is an agreement between two married people to live apart without filing for divorce. In some cases, a couple may choose to separate for a specified period of time before making a final decision on divorce. Other couples may opt for a legal separation in lieu of a divorce.

If the couple agrees to separation terms, they can separate without involving a court. A legal separation agreement involves a court order specifying property division, child custody and financial support during the separation. Because a separated couple still remains married, they must still file taxes under the category of either married filing jointly or married filing separately.

What Is the Legal Definition of Divorce?

Divorce, also referred to as marital dissolution or dissolution of marriage, is a legal order ending a marriage. This decree, which is signed by a judge, indicates that the marriage has ended on the specific date of the final signing. It may also include provisions specifying the division of property and debt, as well as orders for child custody, child support and spousal support, also known as alimony.

The divorce process varies by state but typically involves filing paperwork signed by both parties indicating that they wish to divorce. In some states, there's a waiting period before a divorce can be finalized. During this period, the couple must live separately.

The division of assets and debts is often settled between the lawyers representing each party, and the divorce attorneys may also work out agreements for custody and support before presenting these tentative agreements to a judge. If the couple and their lawyers can't come to an agreement about how assets, custody and support should be handled, the judge listens to both sides and makes an official determination during the divorce proceedings.

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What Are the Main Differences Between Legal Separation and Divorce?

The biggest difference between separation and divorce is that in a separation, the marriage still exists. While a court may order specific custody arrangements and define who gets to use specific jointly owned property or financial resources during the separation, the marriage remains intact.

Whether someone is separated vs. divorced matters if the individual wishes to remarry. Someone who's separated is still bound by the original marriage contract and can't marry again until a divorce is finalized. On official government paperwork and legal documents, a separated couple must indicate that they're married under any item asking for marital status.

During a legal separation, both parties must abide by the terms of the court-ordered agreement between them. This could mean maintaining joint insurance, sharing custody of any children and paying spousal support for a specified time period.

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Considerations for Choosing Separation Vs. Divorce

When it comes to legal separation vs. divorce, one big consideration is whether you intend to finalize the end of the relationship or leave room for a future reconciliation. Some couples separate for a specific period of time, often 3 to 6 months, to decide whether they want to file for divorce or reconcile.

Couples may also choose legal separation over divorce for religious or financial reasons. Religious beliefs that forbid divorce may lead a couple to file for a legal separation instead.

A couple may also opt to remain married for the purpose of maintaining joint health insurance or retaining pension benefits but choose to live separate lives under a legal separation agreement.

All states allow no-fault divorce or the use of irreconcilable differences as a reason for divorce, so issues such as adultery or neglect aren't considered when determining whether a divorce should be granted. However, marital misconduct may be considered for the distribution of assets or spousal support.

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