Legal separation and divorce are often conflated. While similar, these two legal processes are different and serve different purposes. If you are having troubles in your marriage and think that divorce may be on the horizon for you and your spouse, talk to one of our team. It’s important to know the difference between legal separation and divorce and how the former can potentially lead to the latter. It’s not uncommon for couples having marital problems to start with a legal separation before moving into a formal divorce.
What Is Legal Separation?
Divorce is the formal ending of a marriage. Legal separation, on the other hand, is a court order that dictates spouses’ rights and responsibilities while they remain legally married by living apart. Essentially, it’s valid to consider a legal separation as a formal “pause” to a marriage. Many couples use legal separation as a springboard to a formal divorce in the near future. In contrast, others simply consider it a “cooling off” period that can potentially enable the spouses to reconcile their differences.
In most cases, legally separated spouses will live in different houses and start living their lives as if they were single again. Legal separation is more than just living apart from one another, however. The legal separation process divides property and debt responsibility similar to the divorce process, creates a child custody arrangement if you and your spouse have children, and functionally terminates any financial connections you and your spouse have with one another.
Many couples use legal separation as an opportunity to prepare for a more expansive and final divorce process. Others simply use legal separation as a means of detaching from their spouses without losing the benefits that come with being legally married. Consider, for example, an older couple who decide to separate but it would not serve their interests to divorce. In the case where neither of them has any interest in remarrying new partners, legal separation offers an optimal option. It can allow them to live separate lives and disentangle from one another while still allowing them to file joint tax returns, share medical coverage, and enjoy other benefits that come with remaining legally married.
Why Should I Consider Legal Separation?
Legal separation can offer more benefits than many people realize. If you are unsure whether legal separation or divorce would suit your situation better, consider a few examples of situations that should encourage you to strongly consider legal separation instead of heading straight to divorce:
- You are not entirely sure you want a divorce. Legal separation can provide spouses with time and space to address the issues within their marriage. In some cases, this cooling-off period allows them to approach divorce with a more objective perspective; in others, this time allows them to find common ground and reconcile.
- Your religion prohibits divorce. Some religions do not allow divorce. If you have sincerely held religious beliefs against divorce, legal separation can effectively allow you to take advantage of the practical benefits of divorce without violating your religious beliefs.
- Joint benefits. Many couples choose legal separation when they do not wish to live together anymore but still want to enjoy the benefits that come with being married. For example, legal separation could allow you and your spouse to continue sharing a health insurance policy at a rate that would be cheaper for both of you than securing individual policies for each of you.
- Maintaining eligibility for Social Security and military benefits. In most cases, a spouse can only receive Social Security benefits or military benefits through their spouse if they are married for ten years or more. It may behoove you to secure a legal separation so that you can remain technically married until you are eligible to obtain these benefits as long as your spouse is agreeable to this arrangement.
These are just a few examples of how legal separation can serve as an effective alternative to divorce. However, it is important to remember that legal separation can easily become a springboard to divorce. When you settle issues like child custody, property division, and spousal support through the legal separation process, proceeding with divorce in the near future is much easier. You and your spouse will also pay less in legal fees and secure your divorce order much more quickly when you begin with a legal separation process.
When Is Legal Separation Inadvisable?
While there are many practical benefits to pursuing legal separation before or in lieu of divorce, this is not always the best option for some couples. If you do not see any financial benefits to remaining legally married, legal separation may be a waste of time and effort, and you would better serve yourself by proceeding directly to the divorce process. If you intend to remarry in the near future, you should also proceed directly to divorce. You cannot remarry while legally separated since you are still legally married to your separated spouse.
If you are unsure as to whether legal separation or divorce would better suit your situation, it’s best to consult an experienced family law attorney as soon as possible. If you and your spouse are having marital difficulties, proceeding directly to divorce may be a knee-jerk decision that both of you regret later. Consulting with an attorney about your situation can open several doors, some of which can lead you and your spouse to more agreeable circumstances.
A good attorney can explain the benefits of legal separation and divorce in detail. Whether you decide to transform your legal separation into divorce later or simply remain legally separated into the foreseeable future, an experienced attorney is an invaluable asset who can help you determine the best available options in your situation. For example, suppose you later decide to proceed with a divorce. In that case, your attorney can help you take advantage of alternative dispute resolution, assist with your financial disclosure, and provide a wide range of valuable legal services that will empower you in the divorce process.
Ultimately, legal separation and divorce are distinct legal proceedings that each offer different benefits. If you are unsure which option is best for you, contact an experienced family law attorney as soon as possible so you can weigh your options with the help of an experienced professional.