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Legal Separation vs Divorce: What’s the Difference?

Legal Separation vs Divorce: What's the Difference? - National Family Solutions

When a marriage is on the rocks, how to handle it is a very personal decision that is largely up to the couple. Some couples choose to stay together and work things out. Some head straight for divorce court. And some look for a temporary or in-between solution – separation. A separation can be either a prelude to divorce or a time for the couple to work out their problems while maintaining some space before reconciling.

In any case, it’s usually used by couples who, for one reason or another, aren’t ready to completely end their marriage. There are different types of separations. A temporary separation is often what couples decide on when their goal is to ultimately reconcile. A permanent separation indicates that the couple does not expect to reconcile, but may not be ready to divorce either. And then there’s a legal separation.

What Is Legal Separation?

When couples talk about temporary or permanent separation, they aren’t necessarily talking about a legal process. Many separations are informal agreements between the couple involved, with no legal orders backing them. But a legal separation is different.

When a couple gets a legal separation, they go through a process very similar to a divorce. They ask the court to make a ruling on matters like child custody, child support, division of property, and even spousal support. Once a court order exists detailing these matters, the couple is bound to follow that order.

Understanding the Differences Between Legal Separation vs Divorce

While the legal separation vs divorce process differ, there’s one important difference between them – a couple who have obtained a legal separation agreement are still married to each other, while a couple that divorces is no longer married. That may sound obvious, but it’s important to understand the distinction for legal reasons. A person who is legally separated from their spouse cannot marry someone new.

If a legally separated woman becomes pregnant, her spouse is automatically presumed to be the father of the baby, despite the separation, unless proven otherwise. If a legally separated spouse is injured, becomes ill, or dies, the other spouse is still the legal next-of-kin and may be entitled to benefits or compensation related to the circumstances of the death. Although legally separated spouses may not live together, they still have legal ties and obligations to each other that divorced spouses do not have.

Why Get Legally Separated?

There are a number of reasons why spouses might choose legal separation vs divorce or reconciliation – the reasons can be as diverse as the couples themselves are. In some cases, a couple realizes that they no longer want to be married, but their religion or culture frowns upon divorce. Legal separation is something of a compromise – the couple remains married but free to live separate lives. Couples may also choose to legally separate for pragmatic or financial reasons.

For example, a couple may no longer wish to be married, but one spouse depends on the other’s health insurance. A legal separation allows the spouse without insurance to remain on their spouse’s plan even though the couple is no longer together. In this case, the couple may decide to divorce later – perhaps after the uninsured spouse is able to get their own insurance, or after a specific health issue is resolved.

Couples may choose legal separation because they want their spouse to be able to inherit their property after death, or because they want to be able to make medical decisions for each other as they age. Not all couples who no longer have romantic feelings for each other are acrimonious.

Sometimes, the couple sees themselves as close friends who will be there for each other during difficult times. In that case, it makes sense that they may want to retain the ability to speak on each other’s behalf if one of them becomes unable to make their own medical decisions, or that they may want to make it easy for each other to inherit any valuables in the event of one person’s death.

Legal separation also makes it easier to eventually reconcile if the couple ever chooses to do so. Whether they call it that or not, many separations are really trials for divorce. It makes sense to deal with legal issues, like custody and visitation, upfront when a separation happens, because that will ensure that each partner is clear on their rights and responsibilities.

But divorce is very final, and a couple may not be ready to throw in the towel on the marriage entirely just yet. A couple that reconciles after divorcing will need to spend the time and money to get married again, whereas a separated couple will not. Legal separation is often a way to try out divorce while leaving the door open for an eventual reconciliation.

Finally, a couple may know that they want to be divorced but live in an area where they need to be separated for a certain amount of time before a divorce can be granted. Legal separation is not usually a requirement, but couples can often hash out the details of the divorce, like who gets what property and where the kids will live, in a legal separation while they’re waiting to be eligible to legally divorce.

Depending on the family and the situation, there may be other reasons for couples to decide on legal separation as well. Every family is different, and while legal separation isn’t as common as informal separation or traditional divorce, there are times when it’s the best solution for everyone involved.

If you are considering a legal separation vs divorce, you may need help to prepare to present your case in court. However, you don’t necessarily need a family law attorney to represent you. In many cases, people can represent themselves in family court if they’re properly prepared. A legal resource group like National Family Solutions can help get you ready for self-advocacy in a legal separation or divorce proceeding.

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