Legal Separation vs. Divorce

Jodee Redmond
couple separating

Legal separation is sometimes called "Separate Maintenance" or "Divorce a Mensa et Thoro." Being legally separated is more official than being a married couple deciding to simply live apart from each other. In most states, it includes a formal, legally-binding agreement where the couple has worked out the same terms they would deal with if they were getting a divorce. However, in a legal separation, the couple remains married, and should they decide not to divorce, it is not a difficult process to withdraw the separation.

Separation Agreement

A separation agreement would include the same kinds of terms that would be dealt with if the couple were getting a divorce. Their marital property would be divided, and child custody and visitation, if applicable would be worked out. The couple would also work out an arrangement for splitting any debts they incurred during the marriage.

Typically, these terms are binding should the couple get divorced. Consequently, each person should have an attorney to negotiate the details of the separation agreement. If you ultimately decide to follow through and get a divorce, the judge will generally keep the same terms since they were agreeable to both parties. Keep this in mind when you or your lawyer is negotiating a settlement agreement. Anything in that document should be something that you are prepared to live with, possibly on a permanent basis.

Basic Differences Between Legall Separation and Divorce

Below is a general chart outlining the main differences between being legally separated and being legally divorced. However, each case is different and may not follow the guidelines below exactly. It is always in your best interest to obtain the services of a lawyer and get advice from him regarding your specific case.

Separation Divorce
Name Keep legally married name May change back to maiden name
Marital Status Still married Marriage ended
Child support Determined at time of legal separation Generally kept the same as the terms in the legal separation document
Child visitation Determined at the time of legal separation Generally kept the same as the terms in the legal separation document
Alimony Terms are determined at the time of separation Terms are kept the same as the legal separation document
Division of Marital Property Terms decided at time of legal separation Generally kept the same as the terms from the legal separation document
Division of Debt Terms decided at time of legal separation Terms are kept the same as in the legal separation document
Benefits Entitlement Spouses are entitled to work-related or federal benefits Ex-spouses are not entitled to work-related or federal benefits

Why You May Want to Legally Separate

You may want to consider a legal separation, as opposed to a divorce, under the following circumstances:

  • You want to get the pressure off your relationship by getting some issues settled so that you can decide whether getting a divorce is what you really want. Choosing a legal separation is an alternative to the all-or-nothing divorce approach.
  • If one spouse is covered by the other one's health insurance plan, this benefit will likely end with a divorce. Choosing a legal separation over divorce means that this important protection remains in force.
  • You are opposed to divorce on either moral or religious grounds.
  • Spousal benefits from Social Security may be available for couples married 10 years or more.
  • A legal separation can protect the two individuals from actions that each one takes after the separation occurs. For example, if a couple is legally separated and one incurs thousands of dollars of debt after the separation takes place, separation papers may stipulate that the other person will not be held responsible for paying for half of the loan.
  • Sometimes, if a couple would take a loss on major assets by selling their house, they may choose to legally separate and wait until they could recover the loss before divorcing.

When Legal Separation Doesn't Make Sense

Although legal separation is binding, it does not legally end a marriage and sometimes, it may make sense for the couple involved to simply divorce.

  • If one spouse wants to remarry, the couple must get divorced first.
  • The couple is positively sure that they want to get divorced.
  • The state you live in doesn't allow legal separation.

States that Allow Legal Separation

You cannot legally separate if you don't live in a state that recognizes legal separation. If you don't live in one of the following states, you will have to get divorced in order to work out a legally binding way to divide assets, share custody, etc.

  • Alabama
  • Arkansas
  • Arizona
  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Utah
  • Vermont
  • Virginia
  • West Virginia
  • Wisconsin
  • Wyoming

Seek a Lawyer

If you are considering legally separating from your spouse, it's important to seek the services of an attorney. Each state has different laws regarding what can and cannot be covered in a legal separation, and some states don't even recognize legal separation as an option. It's important to remember, above all, that in most cases, your legal separation agreement is binding and will continue to be upheld should you decide to divorce. Consequently, you need to feel comfortable with the terms of the agreement.

Legal Separation vs. Divorce