Legal separation vs divorce are two very different avenues to consider when contemplating a split with your spouse.  Legal separation divides the financial aspects of the marriage, but it does not legally terminate the marriage.  Divorce also divides the financial aspects of the marriage, but the marriage is terminated when a court’s judgment is entered.  While the two processes render seemingly similar end results, there are reasons that a divorce may be preferred over a legal separation. 

Trial Separation

A trial separation from a spouse usually means the two parties live in different homes and are taking time apart to figure out if their marriage can be saved.  They usually are still using marital funds, marital property, and could be accumulating marital debt.  This is a dangerous situation for many.  During this trial separation there is no order in place to divide the marital assets or assign who is responsible for what debt.  This is why it is important to consult with a competent family law attorney when thinking of splitting from your spouse.

Without a legal separation, each party may become responsible for the other’s financial debts during the trial separation because it is still marital debt.  If during the trial separation, one party fails to pay a marital debt, then creditors may come after either party.  Finally, if the parties separate without a legal separation agreement they are taking the risk that their share of marital assets could be devalued or lost if the other spouse does not manage them properly.  It is important to consider your legal options.

Legal Separation

A legal separation is considered a financial divorce, where both parties divide property, and if there are children, address child support and custody.  While the parties are legally separated in the eyes of the court, they may be seen as married when it comes to hospital visitations, insurance coverage, pensions, or government benefits.  To obtain a legal separation, a petition must be filed in state court that asserts the marriage is not irretrievably broke and there is a reasonable likelihood that the marriage can be preserved.

After the petition is filed, the parties can negotiate the terms of their legal separation.  If they are unable to reach an agreement or settlement, they can go to trial and a judge will decide the outcome of their separation and award marital debts, assets, and custody of the children.  It is in both parties’ best interest to take the settlement negotiations seriously because if the legal separation does one day become a divorce, a judge is likely to use the separation agreement as the grounds for the final divorce judgment.

Why Choose to Legally Separate?

There are a multitude of reasons why people choose to legally separate instead of divorce and one of the largest used to be health insurance.  Previously, if one spouse was largely dependent on the other for health insurance or similar benefits, it would be in the couple’s best interest to legally separate rather than divorce so the dependent spouse was still covered.  However, as insurance laws have changed and divorces and legal separations are more prevalent, many insurance companies are now refusing to cover legally separated spouses.

Other reasons why couples choose to legally separate include social security benefits, tax purposes, they’re unsure of divorce, they think the marriage could work if they take some time apart, they want to be financially separate from their spouse, or they want to stop accumulating marital debt.  People also often choose to legally separate instead of divorce for religious reasons.

Where Legal Separation and Divorce Cross Over

Suppose one spouse files for legal separation and the other party wants a divorce, it is then up to the non-filing party to file an answer and a counter-petition with the court stating that the marriage is irretrievably broken and divorce proceedings need to take place.

A legal separation can also be turned into a full divorce 91 days after the legal separation is finalized.  There only has to be one spouse who wants the divorce and that spouse may petition the court for a final divorce judgment and state that the marriage is irretrievably broken.

Divorce

Divorce addresses the same issues as a legal separation, but once a divorce judgment is entered by the court, the marriage is terminated.  Parties usually file for a divorce when they know there is no chance that the marriage can be fixed.  A divorce follows the same steps of legal separation where one party files a petition, the parties negotiate the terms of the divorce, and then they will either settle or go to trial.  Once the divorce is finalized through the courts, either party is free to remarry.  When parties are legally separated, remarrying is not an option because the marriage is still legally intact.  See our previous blog post on divorce for more information.

If you or someone you know is going through a difficult time with his/her spouse and doesn’t know whether to legally separate or divorce, it may be time to turn to an attorney.   Kathleen Shaul is an experienced family law attorney who is able to assist with legal separations and divorces.  If you’d like to get legal advice about your individual situation, contact our team to schedule a confidential consultation.