Legal Separation vs. Divorce

91 (4)Parties who are considering a divorce often confuse legal separation and divorce. The confusion that arises from the two is an understandable error given that the process of legal separation is often the precursor to the formal process of divorcing. Therefore, individuals often just assume that a legally separated couple is also a divorced couple. Although the process of legal separation overlaps with the divorce process, there are significant differences between the two.

What does a Legal Separation entail?

A couple may file for legal separation, which as the name implies allows the court to oversee how their financial affairs will be divided and assign any obligations regarding child custody, support, and maintenance.  Under legal separation, the couple is still married but living apart. Although not a full-blown divorce legal separations often assist spouses in working through personal or financial issues affecting the marriage with court supervision.

What does a Divorce entail?

Divorce refers to the legal process of ending a marriage. Divorce litigation involves a married couple, who formally request a divorce the court requires a “legal reason” for the divorce, also known grounds for divorce. In addition to legally ending your marriage, the court looks at other issues which need to be decided before the divorce becomes final such as the disposition of assets and debt and if the couple has children how custody and visitation will be allocated.

Choosing between a legal separation and a divorce

This is often a matter of personal preference. For example, some couples may hold religious or personal beliefs that do not allow divorce. In other cases, a legal separation allows a couple to remain married while living separately. Also, a spouse may be entitled to Social Security or pensions benefits that provide payments to surviving spouses in this case a legal separation, unlike a divorce, will preserve the surviving spouse’s rights to receive payment.  Further, a legal separation can serve as a way for couples to resolve important financial and child custody issues while still leaving the possibility open of reuniting. As such a legal separation is reversible and may also be easier for a couple with children given the often disruptive and traumatic effect divorce has on children. Lastly, in some states, legal separation for a certain period is required by law before a couple can proceed with a divorce case.

Selecting between legal separation or divorce is often a matter of examining short term and long term goals financial and family and the possibility that a couple may wish to reunite. In the event of the latter legal separation may be the most appropriate course.  

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