If you are in the process of ending your marriage, you might be confused about the difference between legal separation and divorce. While they are two different legal terms, they share some characteristics. In some cases, one arrangement might be preferable to the other. Read on to find out what the differences are, what the similarities are, and information that can help you decide which is right for you.
What’s the Difference?
When you are legally separated, you are also still legally married. This means that if you become separated and then later want to get divorced, you will need to go through the process of filing the correct paperwork with the court, going to any required hearings, and getting your divorce finalized. If, however, you decide to stay married, you will not have to get remarried to each other, the way you would if you went through with the divorce. Instead, you can simply cancel the legal separation, move back in together, and resume your life.
When you get divorced, most of the time, one spouse is not entitled to the other spouse’s medical coverage through an employer unless they pay high fees. With a legal separation, most of the time, the medical coverage stays the same. There are also different tax implications for getting divorced or staying legally married, especially if you share property.
What’s the Same?
On paper, a legal separation can look similar to a divorce. You will both be living in separate residences in most cases. (In some cases, spouses do choose to share a marital home in a variety of different ways, but that is relatively uncommon.) In addition, you’ll need to make some agreements on who will have use of which car, who will have use of the marital home, who will have primary custody of the children, when visitation will be, and so on.
Negotiations for these considerations can take place privately or through the help of a mediator. Even though most of the negotiations will be the same whether you become legally separated or divorced, some spouses find it less stressful when they know it’s only a separation, so it might be more amicable than if you had decided on a divorce from the beginning.
Why Choose a Divorce?
If you are sure that you want to be free of the marriage and there is no hope of reconciliation, a divorce might be your best choice. Being divorced can allow you to get on with your life without a legal tie (in the form of marriage) to your spouse. You can get involved in a new romantic relationship without feeling like you are cheating on your spouse, and you can get remarried.
Why Choose a Legal Separation?
There are many reasons why a couple might choose legal separation over divorce. One has to do with finances: It is often expensive to get a divorce. During a divorce, one spouse might not be eligible for social security benefits, health insurance benefits, other benefits that generally apply to spouses. Also, getting divorced can negatively impact your tax burdens. If neither of you wants to remarry anytime soon and there is not a case of abuse or some other severe circumstances, a legal separation might be a less stressful way to dissolve the marriage for now.
If you think that there is a chance you and your spouse might get back together, a legal separation is often the way to go. You will be able to remain legally married while maintaining your autonomy. You might decide to simply take a break for a while and not have much contact for a set period of time, or you might decide to pursue marital counseling during this time period. If you set a specific time period (for example, six months) for the separation, you can decide at the end of the trial period whether you would like to move in together again, get divorced, or continue the legal separation for another period of time.
Finally, sometimes a legal separation is required before you can get divorced. In some states, there is a waiting period from the time you file the paperwork for a divorce and the time that the divorce is granted. When this is the case, you can become legally separated in the meantime.
Considerations for Legal Separation
While it might be beneficial for one spouse to temporarily leave the marital home on a short-term trial basis, any separation longer than a month or two should have the protection of a legal separation. The agreement will need to address whether one spouse is paying the other alimony, who will live in the home, who will pay the mortgage and utility payments, whether child support will be paid, who has access to which accounts and assets, whether any accounts can be closed or assets sold, and so on. It would be risky for spouses to make verbal agreements of this nature during a legal separation; it is better to have everything documented and filed with the courts.
If you do decide to get back together after all, you can simply cancel the legal separation and the agreements that you had. One spouse would no longer pay child support or alimony and you could go back to the way you were handling the finances before you separated.
If you are considering a separation, you can depend on the experts at National Family Solutions to walk you through the process, give you some things to think about, and assist you in getting the correct paperwork filled out accurately and completely. We can also help whether you decide to get back together with your spouse and dissolve the legal separation or to get divorced. Contact us to find out whether your case is appropriate for our legal advocacy services. In most cases, we are able to help. If we can’t, we can refer you to someone who can. Legal separation can be stressful, but with experienced legal counsel by your side, you can get through it no matter what the future may bring.