Legal Separation vs. Divorce

Legal Separation vs. Divorce: Understanding Your Options

The first thing you need to understand about legal separation vs. divorce is that one option ends your marriage in the eyes of the law, while the other one doesn't. If you want to be free to remarry, you need to get a divorce first.

In some situations, it may make more sense for the couple to come to an agreement about issues surrounding child custody, support, and division of marital assets while still remaining legally married.

Situations Where Choosing Legal Separation May Make Sense

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 "Just Get a Divorce" approach.
• If one spouse is covered by the other one's health insurance plan, this benefit will likely end on 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 to couples married for 10 years or more.

Legal Separation and Military Spouses

For couples married for 10 years or more and where one person has served in the military for a minimum of 10 years who decide to separate or divorce, the provisions of the Uniformed Services Former Spouses' Protection Act (USFSPA) may come into play. Under this law, a judge can determine that a military member's pension can be included as marital property. As such, it is subject to division according to the laws of the state where the legal separation or divorce was filed.

Once the judge has made a ruling in a legal separation or a divorce, the USFSPA provides the means to enforce court orders for the following:

• Child support
• Alimony
• Division of retirement pay as marital property

In order to qualify for a division of a military spouse's pension (which may be up to 50 percent of plan's value), a couple must have been married for a minimum of 10 years. This means negotiating a legal separation as opposed to a divorce makes sense for the spouse who is not serving in the military. Pensions and retirement benefits are an important part of dividing marital assets. If divorcing before the 10 year mark (especially if the couple has already been married for several years) means that one spouse loses the right to any of these benefits, that fact should be taken into consideration before taking steps to legally end the marriage.

Getting a Legal Separation Recognized by the Court

Having one person move out of the matrimonial home doesn't constitute a legal separation. To make the arrangement legal, the couple must file papers with the Court asking that their separation be officially recognized. An agreement outlining the terms of the separation will be filed and approved by a judge.

Negotiate the Terms Carefully

If you ultimately decide to follow through and get a divorce, the judge in the case may decide that since you were agreeable to the terms in the separation agreement that the divorce agreement should contain the same provisions. Do keep this in mind when you and/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.

Do take the time to consider both options when you are looking at legal separation vs. divorce. It may be that a divorce is not the best choice in your situation.