how to choose between legal separation and divorce

Choosing Between Divorce and Legal Separation

Goldberg JonesDivorce, Divorce Process, Featured Content 3 Comments

Ending a marriage is a huge decision. It’s a choice that impacts every facet of your life. Divorce is the most obvious option when a relationship is over, but in some cases, it’s not the best one. There are situations where staying married, but separating might work. It begs the question of whether divorce or legal separation is right for you.

While it may seem like a strange choice, in some cases, legal separation has definite benefits. Every situation is different, so neither divorce nor separation is a perfect fit for everyone. But circumstances exist where opting to remain married does make the most sense.

What Is The Difference Between Divorce and Legal Separation?

On the surface, the most readily apparent difference between divorce and separation is that in one, the couple remains married, while in the other, they do not. It’s simple and straightforward in that regard.

Divorce dissolves a marriage. Your union legally comes to an end. Former spouses are now free to pursue their lives without the complications of being married. They can date, remarry, and generally live their life without marital entanglements.

Though a marriage may be, for all practical purposes, over, with legal separation, it remains technically intact. It’s possible for spouses to lead entirely separate lives but remain bound by law.

In this scenario, people have to mark married on forms and can’t marry someone else. It’s also possible for separated couples to inherit property from one another and even receive benefits. These are big reasons why some people choose this route.

Related Reading: How Is Debt Divided In Divorce?

How Are They Similar?

While there are distinct differences between divorce and separation, the two also share similarities.

One is obviously permanent and final, while the other is less so. But for all intents and purposes, the end product is the same.

In many cases, a legal separation essentially functions as an effective divorce.

  • A court order lays out the specifics of a split between two spouses.
  • The participants tackle the task of dividing shared assets and debts.
  • When there are children, they must create a parenting plan and deal with custody, visitation, and even child support or spousal maintenance.

Though less binding, the mechanical process of separation often mimics that of divorce. As that stands, the question remains, which is the right choice, divorce or separation?

Related Reading: Does Oregon Have Common-Law Marriage?

When Is a Legal Separation the Right Choice?

People choose to divorce or separate for many reasons. The motivations are as disparate and unique as the factors that lead to the end of a marriage.

Some people choose separation as a step toward an eventual divorce, while for others it becomes a more permanent state.

Reasons people may choose legal separation over divorce:

  • It allows couples time apart, away from the conflict of the marriage to decide if divorce is what they truly want.
  • It may allow for the retention of medical coverage and certain other benefits divorce ends.
  • If your religious beliefs conflict with the idea of divorce, you can live separately and retain your marital status.
  • If you are a military spouse, you may wish to remain married for ten years so that you can take advantage of the benefits set up by the Uniformed Services Former Spouse Protection Act.
  • Remaining married for ten years or more also means being able to take advantage of certain Social Security benefits for a spouse.
  • If the decision to divorce is made, the separation agreement can likely be converted into a divorce settlement agreement.

Related Reading: 9 Common Mediation Questions Answered

Financial Reasons For Legal Separation

Financial reasons are a big reason why people choose to remain married but legally separate. In some instances, filing taxes together saves a couple money. There are legal requirements to continue to file jointly in cases of legal separation, so it’s best to consult a tax expert before trying.

Pensions, Health Insurance, Social Security, etc.

After ten years of marriage, a spouse is entitled to a greater share of Social Security benefits. For couples on the cusp of a decade, this often motivates the decision to put off divorce.

As mentioned, military pensions and other retirement benefits often have similar regulations. These are powerful reasons to stay married.

For the Kids

For families with children, separation often proves less traumatic. Depending on age, it may be easier to explain that mommy or daddy lives somewhere else rather than explain divorce.

Negotiating a legal separation is also often less stressful for the adults involved than navigating divorce. And in some cases, legal separation offers the benefits of both divorce and marriage.

Access to Healthcare

Most employer-supported insurance plans don’t cover exes. Over the years, divorce has left many without adequate coverage. As with taxes, many companies view legal separation in the same light as divorce, so it’s important to closely examine policies.

Still, there are times when coverage continues. Especially in cases where one spouse has a chronic condition, this is often huge.

Legal fees

Cost presents another factor to consider when choosing divorce or separation. If the case requires attorneys, the cost of legal separation and divorce are virtually identical.

For cases without lawyers, the cost may be much less. Down the road, however, if you convert the separation to a divorce, you wind up paying again.

These are all financial questions to consider when choosing divorce or separation.

Related Reading: The Cost of Divorce: What You Should Know

Drawbacks Of Separation

While there are potential benefits to choosing separation over divorce in certain situations, there are also drawbacks.

As the name implies, legal separation involves more than one spouse simply moving out. It requires a court order.

Just packing up and leaving opens you up to many consequences. If you and your spouse own a home together, you may lose any future claim to the property. When you leave kids at home, moving out often impacts your chances of becoming the custodial parent.

Moving out doesn’t automatically alter any pre-existing financial obligations. If your spouse runs up debts on joint credit cards or misses payments on a car loan that’s in both your names, you remain liable. Your credit can take a hit and creditors may even come after you for payment.

Whether you choose to divorce or to separate is complicated. There’s no one-size-fits-all answer. Like most cases, it boils down to a specific set of circumstances. In some situations, divorce winds up the optimal choice. For others, legal separation fits the bill.

However it plays out, this is a significant decision, one with lasting consequences. Make sure to take the time and consider all of the variables before deciding on divorce or separation.

Related Reading: Community Property Vs Equitable Distribution: What’s The Difference?

Comments 3

  1. I agree that reconciliation is the most common reason why couples seek a legal separation instead of divorce. My sister and her husband have been having marriage issues for years, and they are planning to end it. My sister hopes that there might come a time that will bury the hatchet. I’m gonna advise them the idea of legal separation instead of divorce and encourage her to seel for legal help as early as now to guide her through the entire process.

  2. I liked that you said that when you get a divorce you are expected to show up in court. I would imagine that needing to go to court would be stressful. I would be sure to hire an attorney to help reduce my stress of the situation.

  3. Finding a divorce lawyer by conducting online research is a great place to start. I’m sure that online reviews would be brutally honest about a client’s experience with a particular lawyer.

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