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Legal Separation

A legal separation, is a court order that mandates the rights and duties of a couple while they are still married, but living apart; in a divorce, the spouses are no longer married. Although legal separations aren’t very common, they can be helpful especially while the spouses work through any personal or financial issues affecting the marriage. Because there are advantages and disadvantages to both processes, there are many things to consider when contemplating legal separation vs. a divorce.

Legal Separation vs. Divorce: Differences

There are key differences between separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:

  • Health care/other benefits: Legal separation allows for the retention of health care and other benefits including certain social security benefits that terminate with a divorce.
  • Marital status: Legal separation allows you to retain your marital status, meaning that you’re not free to marry another; once you’re divorced, you can remarry.
  • Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren’t considered next of kin.
  • Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
  • Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
  • Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.

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Legal Separation vs. Divorce: Similarities

In both divorce proceedings and in the proceedings for legal separation, the court decides the following:

  • Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a “motion pending litigation”).
  • Child custody
  • Child visitation
  • Property division (both legal separation and divorce property division is based on the couple’s situation and how it relates to the property)

Living Separately and Impact on Property Division

Circumstances may arise that lead to couples living apart with no intent to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.

Trial Separation

Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during the marriage and therefore, likely marital property.

Permanent Separation

Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children’s care.
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Tana Benner is an estate planning lawyer.