Marriages can take turns that push couples to consider alternative options for their future, like a trial separation or completely ending the marriage. Facing the follow-up decision to legally separate versus divorce is also not an easy decision. But learning about the differences between these choices can help guide couples through this difficult process. Let’s start by looking at each option.
A legal separation is when a married couple decides to live separately but remains legally married. A divorce, however, is the legal dissolution of marriage — meaning the court terminates the marriage’s legal bond, determines child custody and support, and divides assets and liabilities. Separations can also involve the court establishing agreements like custody.
Explore this guide to understand the critical differences between separation and divorce.
What is a legal separation?
A legal separation is when a married couple formally separates without filing for divorce. Unlike divorce, the couple remains legally married and can either reconcile or move forward with a divorce in the future.
The couple still goes to court to establish legally binding agreements around property division, child custody and support, and other relevant items they want to divide during the separation. These, and other important matters, are outlined in their separation agreement.
A separation agreement is a legal contract between spouses. It outlines the terms and responsibilities of their separation, much like what you would see in a divorce decree. Separation agreements typically cover.1
- Division of marital property
- Allocation of parental responsibilities
- Child custody and allocation of time
- Child support and spousal support
What are the differences between legal separation vs. divorce?
Before choosing between legal separation or filing for divorce, there are a few key differences to consider.
- Insurance: When a couple legally separates, they often can still decide to keep the other person covered under their insurance plans. A divorce typically leads to one partner losing coverage.
- Marital status and taxes: Since a couple remains legally married during a separation, they can file taxes jointly or married filing separately depending on their agreement. If a couple decides to divorce, both parties would file their taxes as single.
- Legal and medical decisions: Many states consider separated couples to be next of kin — meaning they can make legal and medical decisions, unless otherwise outlined in the separation agreement. When couples file for divorce, those decisions and connections are may be severed.
- Debts and liabilities: A legal separation specifies what debts will remain joint and what becomes an individual’s responsibility, including debts accumulated during the separation. Part of the divorce process will outline which debts belong to which partner and separates their finances.
- Property ownership: Property ownership is often left untouched during a legal separation. A divorce typically results in dividing property ownership.
Reasons to consider a legal separation over divorce
When deciding between legal separation versus divorce, there are a few reasons why a couple may opt for one over the other.
Those who don’t feel ready to terminate the marriage — or their beliefs prevent them from obtaining a divorce — may file for a legal separation instead.2 Also, some states require couples to live separately for a period of time before filing for a no-fault divorce.
Another reason couples may choose legal separation over divorce is to maintain insurance or financial benefits, like filing taxes together. Some insurance providers may have specific policies for separated individuals, so check with your provider first.
Often, couples will use a separation period to help them come to an agreement and prepare to file for an uncontested divorce. This can save them time in court, since both parties have already agreed.
Before making your decision, it may be helpful to consult with a lawyer.