April 8, 2021

Many people wonder about the difference between legal separation and divorce. Do you need to begin the process with a legal separation? Is there a way to move directly to a divorce? Legal separation and divorce are related, but are two separate, distinct legal statuses, and your divorce attorney can help you determine the right strategy.

Difference Between Legal Separation and Divorce

In reality, there are three terms to understand.

Separation

Separation simply means that you are living apart. There are no court papers filed and you are still legally married. Although you may divide things like assets, parenting time, and spousal support and may use a lawyer, there are special procedures to do so. Although it is not required in most cases, many couples may use separation as a trial before legal separation or divorce, but there is no change in the status of the marriage. In some cases, a trial separation is required for several months, or even up to a year, before you can file for a legal separation or divorce.

Legal Separation

Legal separation is a change in the legal status of your marriage. You will file a petition with the court and things like custody, visitation, child support, spousal support, and asset division will be handled through the legal system. However, in the legal sense, you are still, technically, married.

Divorce

Divorce is a complete dissolution of the marriage. Assets are divided, custody and support are arranged, and the marriage is over.

The big difference between legal separation and divorce is your legal standing. A divorce thoroughly ends your marriage. You can remarry, the wife can return to her former name, and all estates are completely separated. In a legal separation, the wife will not be able to return to her former name, and neither spouse can remarry. In a legal separation, the spouses can still file their taxes as a married couple and can share insurance, whereas they will not have these options once divorced.

What are the Advantages of Choosing Legal Separation?

There are some benefits to opting for a legal separation. Some couples have religious or moral beliefs about divorce, and a legal separation allows them to separate without actually needing to file for divorce. In other cases, one spouse may need the option to share medical benefits with the other, and this is a possibility with a legal separation. In some cases, the tax benefits of remaining legally married are a suitable motivation to choose legal separation. Finally, if you and your spouse reconcile, changing your legal status back to married is relatively easy, whereas with divorce, if you were to reconcile, you would need to remarry.

What are the Advantages of Choosing Divorce?

The big difference between legal separation and divorce is that divorce ends the marriage. It is a complete break from property rights, debts, decision making, and everything else you shared legally. If you are hoping to one day get married to someone else, this is the right option.

Do You Need to Be Legally Separated Before Divorce?

Legal separation is a distinct status and not a first step toward divorce. You do not need to be legally separated before divorce. You can immediately file for divorce, or you can legally separate and remain that way indefinitely. In most cases, legal separation will take just as long as a divorce and will cost just as much.

In every case, the best first step is to speak with an attorney specializing in family law. If you’re unsure what to do but know you need to do something about your marital status, I can review your unique situation and guide you toward the right decision for you and your family. Contact my office today.