Legal Separation vs. Divorce: How They’re Different

Before you decide to get a legal separation or a divorce, it's important to understand the legal and emotional effects of both possibilities. By understanding your options, you can accurately weigh which choice is best for you and your relationship.

In a legal separation, couples live separately but are still married under the law. In a divorce, spouses legally dissolve their marriage. Both options allow spouses to address how they'll divide assets, approach custody, or provide support. However, legally separated couples have the option to retain some of the benefits of marriage.

Separation vs. divorce: Key differences

Both divorce and legal separation legally create space between you and your spouse. You live separately. Your finances are separated. You work through a court system to address child custody, child support, division of marital assets and debts, and spousal support (or alimony once divorced).

Divorcing and getting legally separated both create important divisions in your lives and financial rules and boundaries that you are required to live by.

However, there are some significant legal and financial differences for those who choose legal separation vs. divorce.

• Marital status. The important difference between a divorce and a legal separation is that when you divorce, your marriage is formally ended. However, when you get a legal separation, you remain legally married to each other.
• Remarriage. Legally separated spouses cannot remarry, but divorced couples are free to remarry.
• Financial benefits. Separated spouses can decide to stay under the same insurance coverage, file joint taxes, or receive shared Social Security benefits. Although divorced couples may maintain Social Security benefits in some cases, they'll have to separate their taxes and insurance.
• Legal significance. Unlike divorced spouses, legally separated spouses may still be considered next of kin for medical or financial decisions. This means that separated spouses can still receive inheritance or make decisions in the event of one spouse's hospitalization or death.
• Property and debt. While legally separated spouses can decide which marital property and debts to share or split, divorce proceedings determine how the couple will divide their accumulated property and debts.

Whether you choose to legally separate or divorce, you'll want to work with an experienced divorce attorney who can guide you through the process and tailor the outcome to your needs.

What is legal separation, and how do I get one?

Anyone can separate at any time for any length of time without court involvement if they feel that separation is right for their family. You're separated if you and your spouse live in two different residences.

However, a legal separation occurs when the court formally declares you are separated through a court-ordered agreement. Under this agreement, you're still legally married but can negotiate critical issues—such as child custody, spousal support, and property division—with the help of a court and an experienced divorce attorney.

While most states allow this option, Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas don't. If your state offers legal separation, you can move forward with this option by filing a court order. Depending on your state, you may have to prove residency and outline the grounds for seeking a legal separation, such as irreconcilable differences.

Other types of separation

Trial separation is an unofficial separation in which you and your spouse determine the terms and conditions of your separation—such as financial responsibilities, living arrangements, or child/spousal support.

This type of separation is meant to be a temporary test period while you explore the best path forward. After a trial separation, you may decide to get back together, permanently or legally separate, or divorce.

Permanent separation is often the next step after a trial separation if you decide to divorce. In a permanent separation, you and your spouse have no intention of getting back together.

If your state considers permanent separation a change in legal status, laws will handle debts and property differently. Any assets or debts acquired after the date of your permanent separation belong to the spouse who acquired them.

What is a separation agreement?

A separation agreement is a legal contract you and your spouse sign voluntarily that outlines the terms of your separation. Signing this agreement allows you both to work out key issues, such as the following:

• Division of marital assets and debts
• Allocation of child custody, access, and visitation
• Support arrangements related to child or spousal support
• Provision of child/spousal support

The court doesn't provide a separation agreement. Typically, divorce lawyers draw this document up for you, and you work together to determine the terms. 

What is divorce, and how do I get one?

Divorce is the legal termination of a marriage. While there can be some variation state-to-state, the divorce process typically involves the following steps: 

1. Prepare to file 
2. File a divorce petition
3. Serve the divorce petition
4. Receive a petition response
5. Request temporary orders
6. Go to trial or settle
7. Get a divorce decree

The length of divorce proceedings typically takes nine months to one year, depending on the type of divorce (contested vs. uncontested), state residency requirements, and whether or not you and your spouse agree on key issues. No-fault and uncontested divorces are the quickest to resolve. 

When do you need a separation to get a divorce?

In some states—such as Colorado, Delaware, Vermont, and Virginia—a separation is required before you can get a divorce under certain grounds. The waiting period is often six months or one year, during which time you'll have to live apart.

In other states—such as California, Colorado, and Wisconsin—a legal separation can be converted into a divorce. This is because you've resolved core issues in your separation agreement and lived under it for a period of time. The agreement then converts to a divorce decree after a specific time.

What is a divorce decree?

A divorce decree is a court order that establishes the specific terms of the divorce, such as the following:

• Division of a couple’s assets and debts
• Provision of alimony/child support
• Allocation of custody, access, and visitation

Courts use this document to enforce the decisions you make in your decree following divorce proceedings.

Legal separation vs. divorce pros and cons

Both legal separation and divorce have advantages and disadvantages. While legal separation allows couples to retain the benefits of marriage, divorce provides clear boundaries and a fresh start.

Legal separation

Pros:

• Retains financial benefits, such as health insurance, Social Security, and tax benefits
• Allows time for reconciliation without permanently ending the marriage
• Offers a separation solution for couples with religious objections to divorce

Cons:

• Prevents couples from remarrying
• May lead to additional legal fees if the couple decides to divorce later
• Doesn't fully sever legal ties, which may lead to emotional and financial complications

Divorce

Pros:

• Provides a clear and decisive end to the marriage
• Allows individuals to remarry and rebuild
• Finalizes the division of property and financial obligations
• Establishes clear boundaries

Cons:

• Could mean a loss of certain financial benefits
• May be more emotionally and legally complex, initially
• Can create a financial or social imbalance between spouses, depending on the circumstances

Why get a legal separation instead of a divorce?

Choosing between a legal separation and a divorce is often a matter of circumstances. Some people have personal or religious beliefs that don't allow divorce. A legal separation allows them to remain married while being able to live completely separate lives.

Legal separation also continues your relationship in the sense that you remain legally and financially connected to each other. For this reason, couples financially dependent on each other may opt for a legal separation while building financial independence.

In this way, a legal separation can be a stopping point on the way to divorce. It allows couples to resolve necessary custody and financial issues while keeping the marriage intact and determining what they really want, as legal separation is reversible, while a divorce is not.

However, spouses who don't intend to get back together should consider divorce. While the divorce process is more legally and emotionally complex initially, drawing out a separation often proves more complex in the long run.

Consult with an attorney if you're unclear which path is right for your circumstances. An attorney can offer advice based on your finances, state laws, and personal needs.

FAQs

What happens if we want to reconcile after legal separation?

If you reconcile after a legal separation, you can reverse the separation in court. While the process differs by state, it typically involves filing paperwork which your spouse will then sign. There may be a filing fee. The court will then return a signed and filed copy of your paperwork to you. 

How does legal separation affect property and debt?

In most cases, you'll address property and debt very similarly in both a legal separation and divorce. In both cases, you can legally decide how you'll divide both assets and debts. However, you can also decide to share certain assets or debts under a legal separation while you have to divide them in the event of a divorce.

Is legal separation cheaper than divorce?

Not necessarily. The costs of a divorce or separation can be relatively similar depending on whether you and your partner agree on the terms of your split, the state where you live, and your personal or financial circumstances. If your divorce is contested or you and your spouse can't agree on the terms of the separation agreement, either process will be costly.

Brette Sember, J.D. contributed to this article.