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Legal Separation vs. Divorce: Understanding the Difference



If you don't want to continue living with your spouse but you are not certain you want a divorce, then you may want to consider a legal separation. A legal separation is similar to divorce in that you'll have to negotiate child custody, visitation and child support, spousal support and the division of your property. Unlike divorce, you will still be legally married to your spouse, but you will be living separately. This article explains why you might want to consider a legal separation vs. divorce.

Why Choose Legal Separation vs. Divorce?

The key difference between legal separation and divorce is that when you are separated, you are still legally married to your spouse even though you are living apart. If you later decide to get divorced, you'll have to go through the legal steps necessary to terminate your marriage.

Why consider a legal separation vs. divorce? There are several valid reasons why people choose to legally separate but remain married to one another. They include:

  • You and/or your spouse oppose divorce for religious or moral reasons
  • One spouse will soon become eligible for his or her spouse's government benefits (such as Social Security)
  • One spouse will remain eligible for the other spouse's health care or insurance benefits if they remain married
  • There is a tax benefit if you and your spouse remain married to one another
  • You and your spouse think there's a chance you may reconcile after you've had time apart from one another
  • You are not yet eligible to file for a divorce under your state's residency requirements or waiting period, but want a court-sanctioned separation agreement until you are eligible to file for divorce
  • You and/or your spouse find it less stressful to negotiate a separation agreement than to negotiate a divorce agreement

If you decide to remain married because one spouse will be entitled to the other spouse's benefits (such as Social Security or health insurance), make sure you read the fine print associated with such benefits. Some benefits will specifically exclude legally separated spouses from eligibility.

A divorce attorney with experience handling legal separations can explain to you the pros and cons of legal separation vs. divorce. You should also consider talking to a financial planner or accountant to help understand the financial ramifications of legal separation.