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
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.