Legal Separation vs. Divorce, Made Simple

Which one is right for you, separation or divorce? We’ll explain the difference.
By:
Matthew Carter
January 7, 2022
T

he decision to split with your spouse can be a tough one, but it’s just the first of many important decisions you need to make moving forward. Particularly when you are a parent, you have to consider the ways in which the lives of both parents and the kids will be different, and how to make the transition as easy as possible.

One of the things you will have to think about is whether you want to seek a divorce or legal separation. If you seek a legal separation, you’ll need to consider how long you would like it to last. The vast majority of states have laws allowing legal separations in addition to (or even instead of) divorces, but many people are confused at the differences between these two concepts.

This article will take a look at the differences in legal separation vs. divorce, and how to decide which is right for your family. Specifically, we’ll talk about the following topics:

  • The definitions of legal separation and divorce
  • Reasons you might choose legal separation vs. divorce
  • Issues common to both legal separation and divorce

The Definitions of Legal Separation and Divorce

Legal separation vs divorce: definition of divorce from a dictionary

If you’re reading this article, you are probably well aware what divorce is: the legal ending of a marriage. Depending on the exact requirement of state law, one or both spouses petitions a court to dissolve a marriage. The court issues a divorce decree. After that decree takes effect, both spouses are then treated as single people for all legal purposes.

Note that divorces aren’t necessarily harder or more contentious. Especially in no-fault divorce states, some couples may approach a court with a divorce agreement and work everything out amongst themselves.

Legal separation is a distinctly different concept from divorce mainly because of its legal effects. For starters, it is not an option available in all states. If you live in one of the following states, legal separation is not available:

  • Delaware
  • Florida
  • Georgia
  • Mississippi
  • Pennsylvania
  • Texas

Note that, in any of these states, you are of course free to physically separate from your spouse and live in separate homes, without or without an official separation agreement. (Sometimes this arrangement is called a trial separation, and it’s done for a certain amount of time before the spouses seek dissolution of marriage.) 

A legal separation is more like a divorce because it involves one or both spouses going to court and getting an order to determine important matters for your family. For example, a court could enter an order for child support during the separation. It could also determine child custody issues, just like it could with a divorce. 

The court may also enter an order for division of property, if you want. (For example, if you want one spouse or the other to have a particular car or the house.) You’ll likely still need a divorce attorney to figure out these details.

Assuming you live in a state that allows it, the biggest difference in legal separation vs. divorce is that there is no court order dissolving your marriage. Of course, that doesn’t really answer the question, as many believe that marriage is “just a piece of paper” or a legal formality.

The reality, though, is that marriage is anything but a legal formality. It confers a great deal of rights and changes the application of several laws. Here’s a small example of the many things affected by your marital status:

  • Filing income taxes
  • Purchasing health insurance (in some states)
  • Social Security benefits
  • Marital assets/marital property rights (in community property states like California, all property you acquire during a marriage belongs 50% to each spouse)
  • Debts (just as with property, loans and other debt incurred during a marriage may belong equally to both spouses)
  • Inheritance (if you die without a will, your spouse may inherit some or all of your property)
  • Medical visitation/decisions (e.g., if you are in a coma, your spouse might make decisions for you)
  • Re-marriage (you can’t marry a new partner while still legally married to your ex)

That’s a lot of things to think about, and the answer of whether to pursue legal separation vs. divorce won’t be the same in every case.

Reasons You Might Choose Legal Separation vs. Divorce

Legal separation vs divorce: stethoscope and a pen on top of a form

There are plenty of reasons you might prefer a legal separation vs. divorce. They run the gamut from technical, legal issues to highly personal ones. There’s no one right answer. Here are some of the more common reasons to choose legal separation:

1. Religious Reasons

The first thing many people think about is their personal feelings and beliefs. In some religions, the idea of divorce is looked down upon. In those cases, a legal separation that preserves the marriage may be preferable.

2. Health Insurance/Medical Reasons

One of the biggest benefits of marriage is the ability to get on your spouse’s health insurance plan. This is even more important when one spouse has a good job with a solid insurance policy. The other might be self-employed or a stay-at-home parent.

Another important thing to think about is if one parent has a serious medical issue or disability that will make it difficult for them to get adequate health insurance coverage. If that's the case, a legal separation can make financial sense for your family and provide stability for both you and your children.

3. Tax Benefits and Other Financial Reasons

If one of you makes a great deal more money than the other, your family may be able to save more money on the whole by filing your taxes jointly as a married couple. It may also be easier to get financing for houses and cars if you are married and combine your income information on loan applications.

Co-Parenting Issues Common to Both Legal Separation and Divorce

Mother carrying her daughter that just gave her a card

Whether you choose legal separation or divorce, there are some considerations you’ll need to make no matter what. Chief among those will be child custody issues. Just as with divorce, a legal separation will involve a judge issuing a custody order saying where the child needs to be, when, including for special occasions like birthdays and holidays.

(If you are using legal separation as a precursor to divorce, you should make sure that you have a custody order in place for both the separation and divorce. If something isn’t working about the order during the separation, make sure you work with the court to fix those issues before the divorce decree.)

With the split in households and finances, the cost of caring for the minor children of the marriage will have to be managed. If you need orders for child support or spousal support, you can get those in a legal separation just like you could in a divorce.

Even if you and your ex don’t need an official child support or alimony order, you still need to keep track of what each of you spends taking care of your child. 

To take the headache out of splitting finances, try the Onward App. After both of you download the app to your smartphones, you can keep track of your expenses and fairly divide those expenses between you. And you can do all of this with minimal communication and fuss, making the process simple and drama-free.

Making the Best Decision for Your Family

Change is tough, even when it’s a necessary and positive force. Even if you don’t get a divorce, splitting up your family is a difficult adjustment. Legal separation won’t make the process easier, but it can solve some problems that families often have when they are re-adjusting to their new lives.

If you think that you might benefit from a legal separation, the first thing you should do is get legal advice from a qualified family law attorney in your state. Learn what your options are and think carefully about the pros and cons of legal separation vs. divorce. Once you see the options clearly, you’ll be prepared to face the future with confidence and optimism.

Download the Onward App today!

Matthew Carter

Matthew Carter has been a licensed attorney since 2004. He has successfully handled a variety of trials, appeals, and evidentiary hearings throughout state and federal courts. Matthew has done pro bono work in the Las Vegas community representing foster children and helping reunite families separated in the Las Vegas family court system.