Determining the Difference Between Legal Separation and Divorce

3 min


In the United States, between 40% and 50% of married couples end up divorcing.

Divorce can be stressful, especially when children are involved, and it’s easy to get confused amongst all of the legalese. There’s so much to think about between finances, child custody, a potential new home, how can you stop to think about the legal aspects?

When you’re splitting from your spouse, divorce isn’t the only option. There’s also legal separation, and these two terms are often confused with one another.

What is legal separation anyway, and what makes it different from divorce?

Keep reading to learn more.

What Is Divorce? 

When a couple gets divorced, they separate completely. The marriage is dissolved and the two are no longer legally obligated to each other on a surface level.

There are still legal circumstances involved in a divorce, but the couple is, for all intents and purposes, no longer acting as a unit.

As far as legal obligations go, during a divorce, one spouse may have to pay alimony (or spousal support). In a divorce involving children, custody needs to be determined. One parent may need to pay the other for child support.

Here are some things that may happen during a divorce.

What Happens During or After a Divorce?

Divorce can not be easily undone—it’s a final process. This means that if the couple chooses to get back together in the future, they’re acting as single people and they need to get remarried. They can’t just walk back the legal divorce process.

This also means that those who are divorced are completely free to remarry someone else of their choosing.

When divorced, you can no longer make decisions for your spouse when it comes to health or finances. You are no longer legally considered a family member or a point of contact unless otherwise decided by the spouse.

Spouses no longer have responsibility for the debts of the other. They’re no longer covered by the other spouse’s insurance or social security benefits.

The couple is completely dissolved in the eyes of the law, often with the only remnant of the relationship being a child.

What Is Legal Separation? 

Legal separation is a bit different. Sometimes it’s a temporary process between the initial “breakup” and the legal divorce.

Many couples find it useful to opt for a legal separation while working out finances, custody, and personal issues.

Sometimes couples choose to legally separate as a form of “taking a break” to decide whether a full divorce is necessary. They may go to counseling during this time and they will likely be living apart from one another.

What Happens During or After a Legal Separation? 

When a couple is legally separated, they still have to go through the custody process if they have children. As they’re living separately, the child cannot be in two places at once, even if the couple is still married.

Each parent has a right to see the child, so visitation and custody will be determined as if it were a divorce. A separated couple will likely also deal with child support and alimony, though the court may use different terms (such as separation support).

In some states, a separation is a necessary part of the no-fault divorce process. Couples are required to live apart for a short period of time in order to determine whether divorce is the correct choice.

When separated, a couple maintains mutual insurance and benefits as if the relationship were unchanged. They’re still considered next of kin when it comes to making decisions for the other, and neither spouse is allowed to remarry.

If the couple decides to end the separation, reunification is far easier than with a divorce. As the marriage was never dissolved, the couple merely needs to reconcile.

Is There Non-Legal Separation?

Not all separations are legal separations.

Couples may choose to separate without the help of the court. They may go through a trial separation, meaning that they are seeing if dissolving the marriage is a good idea. This doesn’t have to be facilitated by the court, though it may benefit the couple to have legal issues like custody worked out with a third party.

Anything that happens during this period happens under the umbrella of their marriage. If one spouse comes into money or property, it is still the property of both spouses and will be divided as such in the event of a legal divorce.

Couples also may choose to permanently separate without a legal separation. There is no legal separation paperwork filed, and the couple is still “together” for all intents and purposes until after the divorce takes place.

Why Choose a Separation?

Not all couples choose to opt for a divorce, especially not immediately. When it comes to divorce versus separation there are some benefits to separation, at least initially.

Even if the relationship is over, a couple may choose to separate instead of divorce for many reasons. In an amicable situation, they may want to retain insurance or benefits that would otherwise be lost upon the divorce.

They may be dealing with tricky financial issues, making mutual finances seem more appealing. They also may feel more comfortable with separation over a divorce if there are children involved that can be easily co-parented.

A divorce is final, so a couple that isn’t totally sure would be better off choosing a legal separation for the time being.

Divorce and Separation: Takeaways

On the surface, legal separation and divorce look very similar. The differences are mostly in the eyes of the law.

A legal divorce allows spouses to become completely separate entities while a separation still bonds them through marriage. A legal separation is a good step when a couple is considering divorce.

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