Legal separation is a process in which a married couple formally separates in a way that the court recognizes. Legal separation has many legal implications and is different from a divorce because the couple is still technically married. Read on to learn about the differences between legal separation and divorce.

Why Separation?

In some cases, a married couple may recognize that their relationship is not working out and they may want to part ways. However, they may want to continue their legal relationship for reasons such as:

  • Religious reasons – The married couple may be part of a religion that does not support divorce in their circumstances, so they may want the safety of a clear court order that describes their rights, but they do not want to technically end their marriage. 
  • Professional reasons – Some people may want to stay married but not live together because they believe being married is better for their professional or public image.
  • Tax filing status – Married couples do not have to technically live together to file with the tax status “married filing jointly,” which often provides better tax treatment to the couple than they would receive if they filed separately.
  • Immigration purposes – If a spouse has an immigration status that is based on their familial relationship, he or she may want to continue being married to retain this status.
  • Benefits – A common reason spouses may opt for a separation vs divorce is because the spouses want to maintain their current health insurance. If a spouse has a chronic condition, he or she may want to keep using the spouse’s healthcare insurance to continue receiving important, and often costly, medical treatment. 

Not ready to get divorced – In some situations, one or both of the spouses may not be ready to get a divorce, so the legal separation serves as a trial separation.

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Legal Separation vs Trial Separation

A trial separation is different from a legal separation because it is simply an informal attempt for the couple to see what it would be like to not live together. It is not recognized by the court and does not typically have any legal effect, except that it may establish the date of separation if the couple later decides to get a divorce. The legally separated meaning is that a couple is formally separated by the court.

Separation vs Divorce

The key difference between separation and divorce is that in a divorce, the marital relationship is terminated and in a legal separation, the marriage continues. Whether a couple chooses separation vs divorce largely depends on their personal circumstances and values. 

For example, if the couple wants to stay married for one of the reasons described above, they may choose a legal separation over a divorce. 

The spouses may also consider the legal separation vs divorce pros and cons, such as:

Pros of Divorce 

  • There is a certain degree of finality in divorce that can provide the couple with closure.
  • You can remarry.
  • The decision is permanent.

Cons of Divorce 

  • A spouse may lose necessary health coverage and other benefits derived from the marital relationship.
  • You cannot easily undo a divorce if you decide you still want to be married.

Pros of Legal Separation 

  • Spouses can receive the legal, financial, and tax benefits of being married while still being separated.
  • Preparing a legal separation agreement can provide a framework for a later divorce and helps proactively resolve several of the legal issues often involved in divorce.
  • A legal separation gives the spouses an opportunity to reflect on whether they actually want to end the marriage before taking this major step.

Cons of Legal Separation

  • A major divorce and separation difference is that the spouses cannot marry someone else when they are legally separated but not divorced.
  • If the couple later decides to get divorced, they will have to go through the legal process and pay the costs associated with divorce, even though they have already went through a similar process in getting a legal separation.

Legal Separation Process & Steps

In most states, the legal separation process is very similar to the process to obtain a divorce. One of the spouses files a petition with the court asking it to legally separate them from their spouse. In the petition, the spouse must establish legal separation grounds, which are often identical to grounds for divorce, such as adultery, cruel and inhumane treatment, imprisonment, and other fault-based grounds, or a no-fault ground such as “irreconcilable differences.” 

So, how does a legal separation work? In many states, the parties do not have to initially agree to the terms of their legal separation. They may eventually reach an agreement and ask the court to approve it. If they do not reach an agreement, the court can make important decisions about the couple’s children, assets, debts, and other legal aspects of their case. 

However, in some states, the couple must agree to these key terms of their separation in order to obtain a legal separation. 

The judge incorporates the agreement into the court order and the couple is formally separated. The legal separation typically continues until the order expires, the couple asks the court to terminate the agreement, or the couple gets divorced.

How To File For Separation

A spouse who wants a legal separation prepares a petition that states the following:

  • The identity of the parties
  • Their request for a legal separation
  • The legal separation grounds
  • Their eligibility for a legal separation
  • The issues to be determined by the legal separation 
  • A request for the court to legally separate the couple

The petition must be properly served on the other spouse. The other spouse has a limited amount of time to respond to the petition. The spouses may then negotiate the terms of their separation agreement. They will then ask the court to approve the agreement. Once approved, the agreement is binding and part of the court order.

What’s Affected?

The key component of the legal separation meaning is the “legal” aspect. The court is involved in the process and the decisions that are made will affect the couple’s legal rights.

A legal separation affects the same things that a divorce does, primarily a couple’s property, living arrangements, finances, child custody, child support, and spousal support. These are discussed in more detail below.

Real Property & Living Arrangements

The settlement agreement will typically outline the couple’s living arrangements, such as one spouse remaining in the marital home with the children and the other spouse living outside the home. There may also be an agreement related to the marital home, such as agreeing to sell it after a certain number of years or after the children move out. 

Children

One of the benefits of a legal separation is that it can provide clarity related to the children. The couple may reach an agreement about legal and physical custody, visitation, and child support.

Finances, Debt & Assets

Property is also divided between the couple. Both spouses will typically retain the property they had before the marriage and any other separate property, as well as a portion of the marital property, which will be outlined in the legal separation agreement.

The separation agreement will typically include language that states from that date forward, each spouse may be responsible for certain debts and bills. The separation agreement may also provide for spousal support in which one spouse directly pays a fixed sum of money to the other spouse.

How Long Do Most Separations Last?

According to the U.S. Census Bureau’s most recent “Number, Timing, and Duration of Marriages and Divorces” report, the average first separation before a first divorce lasted between 9.5 and 10.8 months. Some states require the couple to seek a divorce within a certain timeframe – such as 12 months or 18 months – or the separation agreement will automatically terminate.

How Many Separations Result In Divorce?

As we discussed in our article “Trial Separations: Do They Work?” statistics show that approximately 79% of separations eventually end in divorce. If the couple does not end the separation within two years, they are unlikely to ever reconcile.

Legal Separation Cost

The legal separation cost depends on several factors. The factor that most affects the cost to obtain a legal separation is whether you and your spouse are in agreement on most of the subjects related to your separation. If you are, you may be able to file a joint petition (in jurisdictions where this is allowed) or present a legal separation agreement to the court without breaking the bank. You can also consider mediation as a way to reach an amicable resolution of the key terms of your separation since having an uncontested case is often much less expensive than having a contested one.

If you and your spouse cannot reach an agreement, you both may have to hire your own lawyer to help argue your position in court. There may be additional expenses, such as paying for a guardian ad litem who serves as your child’s legal advocate or an appraiser who can help determine the value of your marital property.

It often costs the same amount of money to get a legal separation as it does to get a divorce. However, many separation agreements can be converted into divorce agreements, so you might not incur substantially more costs if you ultimately decide to get a divorce.

Ending A Legal Separation

Another important difference between legal separation and divorce is that a legal separation may be ended in different ways. The court order may specify how to end the legal separation. In some situations, the legal separation may automatically terminate if the couple has not petitioned the court for a divorce after a certain amount of time. In other situations, the couple may need to request that the court end their legal separation. If the couple ultimately decides that they want to end their separation and divorce, they may be able to ask the court to convert the separation agreement into a divorce decree.

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