Untying the Knot: Legal Separation vs Divorce

Untying the knot: Legal separation vs divorce

Marriage requires time, commitment, and energy to prepare for. It’s a time where couples strive to take their relationship to the next level. However, people change, problems can develop, and expectations fall short, leading to discussions about the next steps towards a resolution. Though it’s not what couples in loving relationships hope to hear, sometimes this next step involves talking about a possible legal separation or divorce.

What’s the difference between a legal separation & divorce?

Legal Separation permits the parties to still be married, but the court order dictates the rights and duties of the couple while living apart. Legal separation does not always end in divorce.

Divorce is a legal action that spouses take to terminate their marriage relationship. It is the dissolution of marriage where the couple is no longer married. The legal process of a divorce determines the custody of children and ownership of any debt and estate.

Reasons to Choose Legal Separation or a Divorce

Emotional and Personal Reasons

Legal Separation: A separation can allow you and your spouse to emotionally and mentally prepare for a possible divorce. Alternatively, it also gives a chance for you both to cooperate and reconcile while living apart. Many destructive marital issues, such as a lack of commitment, abuse, poor communication, and infidelity, can be resolved through marriage counseling and having a heart to heart discussion with your spouse. If you come from a culture or religion where divorce is frowned upon, a legal separation can help you reach your emotional and relationship goals while complying with your traditions.

Divorce: As previously outlined, there are many relationship issues that may contribute to your decision to divorce. However, even sometimes marriage counseling and persistent attempts in resolution cannot ameliorate the tensions and issues between you and your spouse. In this case, a divorce might be best to represent your firm and final decision to end an unresolvable relationship.

Financial and Logistical Reasons

Legal Separation: While legal separation may not be the final stage for some spouses, there are also several financial benefits that follow along with this decision. For separation, you can still be legally married while living apart, meaning you can enjoy the numerous financial benefits of being married. Tax benefits potentially include:

Filing jointly and continuing to preserve the marital deduction for estate planning.

Payments for spousal support on tax returns can be deducted

Other benefits include spousal support, health care, legal assistance, and retirement pay. Couples can utilize a Separation Agreement without having to hire an attorney for long periods of litigation, which can result in high fees.

In short, a legal separation gives couples time to discuss how their shared property and finances will be handled while retaining the financial and tax benefits of being married.

Financial and logistical reasons for divorce and separation

Divorce: The divorce option is viable if couples decide they wish to end their relationship permanently and be financially independent of each other. While a legal separation technically has more financial benefits, divorce isn’t completely devoid of them. By divorcing, individuals can save thousands of dollars on their annual taxes by avoiding Alternative Minimum Taxes that restricts the number of tax reductions married couples can use.

In terms of medical care, seniors are increasingly filing for divorce in order to more easily qualify for Medicaid (because qualifying for it is based on the financial situation of both spouses), in order to get affordable access to nursing homes. Lastly, under some circumstances detailed in this article, some couples may increase their social security benefits if they decide on a divorce.

How does the state handle the proceedings?

Legal Separation: From a state level, they can either require a legal separation, recognize a legal separation but not require one, or neither require nor recognize a legal separation. Therefore, be sure to check your state law to see what the requirements are for a separation.

Divorce: Specific requirements can vary from state to state. It’s advised to consult with a qualified legal professional in your state to be informed of the stipulations.

What do you need?

Legal Separation: While a Separation Agreement is not legally required, an agreement can facilitate the process of confirming tax, legal, and financial details leading the separation. It identifies the parties, residency requirement, the children, assets and debts involved, spousal support, and notarized signatures.

Divorce: A Divorce Agreement, or Marriage Settlement Agreement, is used when the couple has agreed on all the issues and decided on how to split their property, control, and custody of any children. You may finalize your divorce settlement agreement either before or after you file for divorce. This document can be enforced should the other spouse fail to hold up to their agreement and can also aid the process when presenting the case to Court. It is highly recommended you have an attorney prepare and review the agreement for you. You will also need to provide documentations of your assets to your divorce attorney during the process: income, real estate, savings and checking accounts, life insurance, debts, pension funds, and automobiles.


Relationships are fluid and circumstances are not always foreseeable, hence it’s important to take legal precautions and actions to protect yourself and your assets. At the same time, this can protect your relationship with your spouse in the long-run as well.

Elaina Lin
Elaina Lin is a writer and the editor for Legal Templates, where they provide people the right tools and resources to be their own legal advocates. She works alongside licensed U.S. attorneys to produce factually accurate and up-to-date material in social and legal issues.

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