Which is Right For You, Legal Separation Or Divorce?

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By D. A. Wolf, Featured DM Blogger - October 21, 2013 - Updated May 03, 2017

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Why do some couples legally separate rather than divorce? What are the differences between legal separation and divorce, including the pros and cons of each? What do you need to understand about legal separation so you can ask the right questions as you consider your options for the future?

Definition of Legal Separation

A legal separation is a binding agreement in the form of a court order that defines the handling of assets, liabilities and other financial matters if you choose to live separately from your spouse.

Much like a divorce, a separation clearly lays out financial obligations and limits to liability, which can protect both parties. If there are children, it may also specify arrangements for childcare, financial obligations pertaining to children, and temporary custody. 

Should you move on to divorce, the elements specified in your separation will be considered by the courts, so if you go this route, be sure to prepare well and cover your bases.

Note that legal separation is not an option everywhere in the U.S. As is the case with divorce, laws governing it vary by state.

  • Some states require it before divorce.
  • Some states recognize it, but do not require it.
  • Some states do not allow it as an option.
  • For more on specific states requiring, recognizing, or disallowing it, see here.

 

Why Choose Legal Separation over Divorce?


People opt for separation over divorce for many reasons that are personal, logistical, and financial.

Among the personal reasons, you and your spouse may decide to take time apart to see if you really want to end the marriage. You may have religious beliefs that make divorce an unacceptable option, but you wish to live separately and protect your financial future in the process.

Among the logistical and financial reasons for choosing legal separation over divorce are some of the following.  

  • You may be able to retain spousal benefits (health insurance for example) that you could not if you were divorced.
  • You must be married at least 10 years for Social Security divorced spouse benefits. If you are close to 10 years of marriage, a legal separation to get you past the 10-year mark may make sense, especially if you have earned significantly less than your spouse, as is often the case for Stay-At-Home-Moms or mothers who have worked part-time.   
  • While trying time apart, you may be concerned about your spouse running up debt. A legal separation can limit your financial liability and protect assets you acquire moving forward.
  • There may be tax advantages in not terminating the marriage and continuing to file jointly.
  • Future children are considered “legitimate” as the couple is still legally married. Clearly, if you’re legally separated you aren’t free to marry anyone else.
  • You and your spouse may agree to lead separate lives, but sharing the same household is generally less expensive so you choose legal separation over divorce. 
  • It protects a spouse from desertion, which is grounds for divorce in some states. In other words, if you live apart without a separation agreement, you may find yourself charged with desertion or abandonment

When it comes to a separation versus divorce, you should consult an attorney, tax advisor, financial planner and/or accountant to answer your specific questions for your circumstances. 

Pros and Cons of Legal Separation Versus Divorce

The decision to separate or divorce is never an easy one. If you live in a state that allows you the option of legal separation, the advantages may be many.

You may be uncertain if you really want to take this serious step. Buying time, especially if you have children who are impacted by your decisions, may allow you or your spouse a cooling off period if you’re dealing with a specific conflict.

You may also retain many of the financial and social advantages of marriage, though legal separation facilitates leading separate lives.

Among the cons, I can think of a number of circumstances in which legal separation may not be a viable option. If one spouse is anxious to marry someone else, negotiating separation rather than divorce may be very tough going.

You may also find you’ve struggled through marital difficulties for long enough, having done everything you reasonably can to make the marriage work. You may have reached a stage when you want to be legally “done.” If you share children, your lives will still be inextricably linked, but you may choose divorce over legal separation for the clarity you need when it comes to the next chapters in your life.

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