How Legal Separation Differs From Divorce

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Choosing to end a marriage is a life-changing decision. That one act impacts almost every single part of your life. Divorce is the most common way to end a marital relationship, but it’s not the only one. And it isn’t always the right fit for every situation. In certain circumstances, a legal separation is an option when divorce isn’t.

What’s the difference between legal separation and divorce?

While divorce is final and absolute, legal separation is not so definitive. In most cases, it serves as a de facto divorce. For all intents and purposes, the marriage comes to an end, though it remains technically, legally intact.

This may sound strange—after all, by this point, you probably want to sever all ties with your spouse as soon as possible—but it does come with potential benefits. And in some situations, divorce isn’t the ideal option.


In most cases, legal separation functions similarly to divorce.

The couple splits up, they live apart, and a court order sets out all the specifics. During the process, the couple deals with the division of property, hashing out child custody, creating a parenting plan, and there can even be child support and spousal support orders.

Legal separation often looks a lot like divorce on a practical, day-to-day level. The mechanics are similar, and though one is obviously final and permanent while the other is not, the finished product tends to be quite comparable.

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Though divorce and legal separation often resemble one another, they do have significant differences.

    • The biggest is obviously that in separation, the couple remains married and in divorce, they do not.  Divorce dissolves a union once and for all.
    • The marriage is, in no uncertain terms, over.
    • Exes can go about their individual lives completely unfettered.
    • They’re free to date, remarry, work, move, and live without any of the complications of marital entanglement.

In a legal separation, this often plays out in a similar fashion. However, the marriage remains official.

    • Though the individuals largely live their own lives, there remains a legal connection.
    • You can’t marry someone else.
    • You have to mark married on forms.
    • There’s a lingering association.

And it’s often these bonds that drive people to go this route.

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When Is Legal Separation The Best Choice?

Many reasons exist for choosing either divorce or legal separation. The causes are as different and unique as the reasons to end a marriage, and there are many different goals. For some, legal separation is a means to an end, a step towards divorce down the road. In others, it becomes a more permanent state.

    • For some couples, legal separation provides space to deal with relationship issues with an ultimate eye on reconciliation. Living apart may provide much-needed space for spouses to work on themselves.
    • It may offer time to figure out the particulars of a divorce, including financial issues, child custody, and more.
    • Some people choose to stay married because it’s easier for the kids.
    • Others may be unwilling to divorce for moral, religious, or ethical reasons.
    • It’s even possible for two people to be very much in love but simply unable to live together.
    • For families with children, legal separation often proves less traumatic than divorce. Depending on how old the kids are, it may be easier to explain that mom and dad live apart than it is diving into divorce and what that means. The process is often less stressful and hectic than divorce, which impacts everyone involved.

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Affect on Finances

Many couples opt for legal separation for financial reasons. In certain cases, it provides the benefits of both divorce and marriage.

    • For some couples, filing joint taxes saves money. There are hurdles for continuing to file taxes together after legal separation, though it’s possible on occasion. You should consult a professional ahead of time, however.
    • Retirement benefits often hinge on the length of a marriage. Social Security kicks in after ten years of wedded bliss, so many people near this milestone choose to remain married.
    • Pensions, military benefits, and other retirement allowances also have similar rules and regulations. Money and future financial windfall are powerful motivators to hold on a bit longer.
    • Continuing access to healthcare often factors into the decision when couples weigh divorce and legal separation. In most cases, employer-supported insurance plans don’t cover former spouses, though some do in legal separation. Again, there are potential pitfalls. Many plans look at legal separation and divorce in similar ways, so it’s vital to give your policies a close look. But healthcare is expensive, and especially in cases of chronic conditions, this may be huge.

Legal fees and attorney costs are other factors to consider. When complicated cases involve lawyers, the cost of divorce and legal separation can be nearly identical. If not, the cost may be much less.

One thing to know is that, if you go with legal separation and ultimately decide to divorce down the road, couples often wind up paying twice.

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Not Just Moving Out

There’s much more to legal separation than one spouse moving out and calling it good. The matter requires a court order, and just packing up and relocating has consequences. In fact, don’t throw everything in a box and hit the road. That can cause a number of problems.

    • If you have kids, simply moving out can negatively impact your custody case.  It may appear that you’ve abandoned your kids or that you’re not a dedicated parent, whether that’s true or not.
    • When you and your spouse own a home together, moving out may hurt your future claims to the property.
    • Moving out doesn’t alter any financial obligations already in place. If your name is on the mortgage, you’re still on the hook for payments. You remain liable if your spouse runs up massive credit card bills. Leave your name on the loan for your ex’s car and creditors may come after you for late or missed installments.

Because it’s more official and requires a court order, legal separation helps protect you from many of these problems. Like divorce, the process deals with most of these elements, as well as others.

The choice between divorce and legal separation is complicated. Every situation is different, so there’s no single answer that’s always right. For some couples, legal separation is the best option. But for others, divorce makes the most sense. Whichever route you choose, it’s an important decision with long-lasting ramifications.

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