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The following is for informational purposes only

What is Legal Separation Compared to Divorce?

Ending a marriage through divorce or separation is not an easy decision to make. It usually comes after all options to save the union have been exhausted, resulting in the need to separate identities and assets. A divorce is an order by the court to dissolve the union, while a separation refers to a court mandate of maintaining the couple's rights while they are still married but living separately.

The biggest difference between the two is the status maintained. In divorce, the marriage is terminated, so associated rights and properties are divided according to the couple's situation. For separation, the benefits remain intact as couples may remain next of kin to each other. They can also share healthcare, social security, or pension insurance. Separation does not end the union, so both are technically considered married.

Types of Separation

While a divorce comes with finality, which is the termination of the marriage, a separation brings ambiguity to the subject. There are three forms of separation: legal, permanent, and trial. In most states, legal separation is the option that changes the couple's status. However, all of these can potentially affect one's legal rights to the other.

Legal Separation

Legal separation is done by filing a request at the family court. It relegates the individuals to a middle ground between married and divorced. If the judge grants a legal separation, they will discuss particulars such as division of resources, alimony, and child support if necessary. It is quite similar to a divorce and can be used as a precursor considering the couple could use the separation terms for a settlement.

Legal separations are invoked in cases where the couple would like to end their union but have an aversion to divorce. It could also be that they would like the chance to keep the family together but live separate lives individually. It is a severe option, though, so if a person is considering legal separation rather than a divorce to keep the insurance benefits, it would be advisable to check the package before going ahead.

Trial Separation

Trial separations can occur when the spouses desire a break and are still deliberating if they want to divorce. From a legal perspective, there are no significant ramifications during a trial separation. The marital property laws would still apply. The court may treat revenue earned and things bought during the trial separation as marital property. Often that would also mean it is not advisable to sell property without the spouse's consent during a trial separation, as the rights of the other still apply at that time.

Permanent Separation

Lastly, there is permanent separation. Depending on the state of residence, such a separation would translate to a change in the property rights situation. In some states, assets and debts obtained during the separation belong to the spouse that attained them. Once permanently separated, each spouse retains responsibility for any debts they solely incur. For that reason, the rights to the other's property and obligations change from the date of separation.

Reasons For Separation Rather Than a Divorce

The couple may want to live apart for personal reasons but not necessarily split their assets for complexity reasons. From a financial point of view, a legal separation is simple because it allows both to maintain their status and benefits from each other. For example, the couple can continue filing taxes, leading to financial benefits. It also allows access to social security and military benefits if the couple has been married for over ten years.

One spouse can still be eligible for health insurance coverage from the other's job. However, a divorce would end it. Legal separation also works from a personal standpoint. A separation will suffice if one or both are still considering the possibility of working things out in the marriage. It is because it is reversible, whereas a divorce is not.

Legal separations also keep things simple where children are considered. If the couple wishes to keep the family together but still work through their issues, separating may be the appropriate way to handle things. Similarly, couples that cannot go through a divorce for reasons of faith can opt for a legal separation as it does not terminate the union.

Reasons For a Divorce

There may be better solutions than legal separation for some situations. If there is no financial advantage from separation and both spouses would like to end the marriage, it would be worth considering. The alternative is spending resources getting a separation only to move on to the divorce in the future. Should one or both spouses also want to get remarried, a divorce from their current partner would be the only way to do this from a legal standpoint.

Thirdly, if one does not want any tangible connection left to their spouse, like financial decision-making, a divorce would be the best approach. Divorces remove the financial claim to the other spouse's assets or insurance. One also loses privilege over the other's medical plan or decisions as they are no longer next of kin. It is worth noting that some states do not have a valid notion of legal separation. In these cases, if there is concern about financial decisions, proceeding with a divorce settlement would be prudent.

Both Divorce and Legal Separation Allow Individuals to Live Separate Lives

Divorce and separation occur when a couple wants to end their union. Regardless of the reason, both entail living separately, though the status and obligations differ significantly. Separation is done when either spouse wants to retain a tangible connection with their partner. It allows financial benefits from tax exemptions and social security benefits, considering the marital status remains the same.

Property divisions may still occur, but it is not as final as a divorce settlement. Divorces are sought when there is no personal or financial benefit to remaining married. It includes all of the provisions of separation except for a change of status. That means the couple does not remain each other's next of kin. They are also subject to division of assets, debts, and children if present. It is also better for the couple to remarry or remove all connections from their previous partner.