Divorce or Legal Separation?

An unhappy marriage often makes a person want to part ways with their spouse. When love is lost, neither spouse feels secured or loved. And escaping from such a marriage may turn us to a legal separation or divorce.

break up divorce

While most people often use these terms like separation and divorce interchangeably, but in many jurisdictions, these two terms have totally different legal significance. Notably, there’s also a difference between a separation and a legal separation. So, it’s important to understand the difference between the terms to ensure your rights are protected.

Unlike divorce, a legal separation doesn’t put an end to a marriage, but it enables a couple to live apart while remaining legally married. During this separation period, the law provides the rights and responsibilities of each partner.

Things covered in a legal separation

A legal separation agreement will cover all issues covered in a divorce. Issues like custody and child support, visitation schedules, and spousal support will be documented. This separation agreement will ensure your interests are protecting until such a time you file for divorce.

Different types of legal separation

Trial separation

If you want to take a break from your spouse as you think about divorce or reconciliation, you may choose to live apart for a while. In this type of separation, the same rules apply as if you were married. If the two of you decide there’s no reconciliation, your separation turns into a permanent one.

Permanent separation

You’re considered permanently separated if you have lived apart for some time with no intention of reconciling. In some states, living apart can change property rights.

Remarkably, if you separate with no intention of getting back together, but end up spending a night together just for “old times’ sake,” you’re at risk of becoming responsible for your spouse’s financial actions.

Legal separation

Some states allow you to get a legal separation after filling this request in a family court. It is a different legal status from being either married or divorced – you’re no longer married, but you cannot remarry, and you aren’t divorced either.

Advantages of a legal separation over divorce

While a legal separation and divorce have several things in common, there are some advantages of separating with your spouse rather than divorcing.

It retains some healthcare and financial benefits that a divorce would put to an end. It is often the better option for a financially struggling couple. If one of the partners has been out of work for a while, a legal separation allows them to continue enjoying the benefits of marriage as they strive to become financially stable.

It allows a couple some time apart as they try to figure out if they want a divorce. Living separately for a while can also cool down any conflict experienced in the marriage. Most couples also take advantage of this period and attend counseling to find new ways of dealing with conflict if they were to recur in the future.

People who would rather not go for divorce because of religious beliefs often go for this option. The two parties are able to live separately but still retain their marital status.

Couples can easily convert a legal separation agreement to a divorce settlement agreement if they decide to divorce. This will save you both money and time and will spare you the mental turmoil of going through a conflicted divorce case.

legal separation and divorce

Read this legal separation article for more advantages.

Differences between legal separation and divorce

Marital status

This is perhaps the biggest difference between separation and divorce. If you opt for separation, your marital status tends to remain married because, unlike in divorce, your marriage isn’t terminated.

You and your partner may have sorted issues like child custody and visitation in court, but the two of you are still husband and wife. This, therefore, means you cannot remarry and can only do that once divorced.

Property rights

In a legal separation, both parties retain the right to marital property, but this isn’t the case in a divorce. If you go for separation, each of you will have their rights to marital property preserved even upon the death of either partner. However, a divorce doesn’t retain such rights.

Power of decision making

Spouses are next of kin – closes living relative. When a couple separates, they still remain each others’ next of kin. This means spouses still carry the right to make any financial and medical decisions for the other. Once a divorce is finalized, this power is extinguished.

Room for reconciliation

As long as a couple remains separated, there’s still room for reconciliation. The time apart allows each one of you to think through what you want and the effects of your decision to your family and future.

While separation may be temporal, a divorce is permanent. A separated couple can choose to shelve their differences and reunite, but a divorce leaves no room for reunification.

Debts and liabilities

In a legal separation, a couple still remains legally responsible for each other, including any debt or liability. A divorce court will handle any debt during the petition, which will allow both parties to live separate lives.

Social benefits

Legal separation does not revoke healthcare and other social security benefits such as pension insurance, retirement, etc. Older couples often need this social security to protect them, and a legal separation ensures such benefits remain intact until such a time the couple decides to divorce.

As seen above, both legal separation and divorce carry their own advantages and disadvantages. While the two have their differences, they have similarities too. Therefore, it is critical to consider all aspects of divorce and legal separation if you’re contemplating between the two.

If you’re considering legal separation or divorce, it would be wise to consult with an experienced and knowledgeable family lawyer within your jurisdiction. The family law attorney near me will advise you on the process with either procedure, problems, and benefits of each, and any other factors you need to consider before choosing between a legal separation or divorce.

Mike Mwangi

Mike Mwangi

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