Once spouses decide they no longer wish to remain in a marital relationship and would prefer living apart, they might think that divorce is their only option. However, there are a few alternatives, including legal separation, for spouses to consider. It is crucial that spouses understand all options available to them as each one has a different effect on marital status, property rights, healthcare, and social security benefits. After fully understanding the different ways to dissolve or restructure a marriage, spouses can choose the course of action that is best for them and their current situation.
Separation and legal separation are commonly mistaken as the same thing.
A separation means that a married couple chooses to live apart at different residences. During a separation, the couple is still legally married. Generally, it is not necessary to get a court order, and the couple can continue to mark "married" on government forms.
Couples going through a separation may make arrangements regarding childcare and property division themselves. In some states, separation will be grounds for a divorce and will likely be required for spouses to file for uncontested marriage dissolution.
A legal separation, on the other hand, is similar to a divorce but not as common. To get a legal separation, a couple needs to file for it in a local court, and when it is granted, spouses remain married and may not remarry.
Moreover, spouses continue to live apart, and they get a court order that includes provisions regarding property division, child custody and support, and spousal support. If one of the spouses wishes to remarry at some point, they can seek a divorce even after a legal separation order has been issued.
After a divorce, the couple is no longer married. A court order will finalize the marriage dissolution, and a divorce decree issued by the judge will include provisions regarding property division, childcare, child custody, visitation, and alimony payments, if applicable. After a divorce decree is signed, each ex-spouse is free to remarry. However, some states require that they wait for a certain period of time before tying the knot again.
When to Choose Legal Separation over Divorce
Choosing between a legal separation or a divorce will ultimately depend on the circumstances of each couple. For example, people will often choose legal separation when their religious or moral values prevent them from seeking a divorce. Spouses may also decide that a legal separation makes more sense financially as they can retain the tax benefits from being legally married and keep their current health insurance plans.
When to Choose Divorce over Legal Separation
Divorce is sometimes a better option for couples as it terminates a marriage, allowing each ex-spouse to remarry if they choose. Further, if marriages end on bad terms, a divorce is sometimes preferable because the couple does not need to interact or be tied to each other financially moving forward. Even if the desire to end a marriage is amicable, and there are no hard feelings between the spouses, a divorce gives each person much more freedom to start a new life without the other.
Difference and Similarities Between Legal Separation and Divorce
There are some key differences and similarities to understand before deciding whether to pursue a legal separation or a divorce.
In legal separation and divorce, the court will issue an enforceable court order, which will include provisions on:
- Property/Debt division
- Custody and visitation
- Child support
- Alimony awards
Additionally, both in a legal separation and a divorce, spouses will have to live apart from one another.
- Marital Status: During a divorce, the couple is no longer legally married. In a legal separation, the couple remains legally married.
- Healthcare and Social Security Benefits: As legal separation does not end a marriage, spouses may retain their healthcare and social security benefits. However, after a divorce, one cannot use the benefits of their former spouse.
- Debts and Liabilities: In a legal separation, the couple remains liable for one another’s’ debts and liabilities, but they do not following a divorce.
- Property Division: Because a couple is still legally married after legal separation, property acquired after it is official is still considered marital property. After a divorce, property will be considered separate.
- Decision Making: A legally separated couple is still considered next-of-kin and can make financial and medical decisions for one another. The same does not apply to a divorced couple.
- Reconciliation: If couples wish to reconcile after a divorce, they would have to get remarried. A couple in a legal separation never dissolved their marriage, making reconciliation easier.
Legal Impact on Property Division for Different Types of Separations
As stated above, there are different types of separations that couples can choose between. Depending on the type of separation spouses pursue, there are varying impacts on property division and financial rights that should be fully understood before deciding which approach to take.
Most property acquired during the marriage with marital funds will be considered marital property and belonging to both spouses. However, depending on whether your state is a common or a community law one, different things might be considered separate/marital property.
Typically, marital property includes:
- The earnings of both spouses.
- Retirement agreements.
- Bank accounts.
- Life insurance policies.
During a divorce, a divorce settlement agreement will determine the division of the marital property between spouses.
All property acquired after the divorce will be considered separate property, and only the person who purchased, earned, or acquired the property will be considered the owner.
During a separation, however, the classification of property for property division purposes will depend on the (1) type of separation and (2) state-specific laws.
The different types of separation and their effect on property division are outlined below:
- Legal Separation: Because a couple in a legal separation is still legally married, all property, even that acquired after the legal separation, will be considered marital property. However, there will be a court order regarding its division.
- Trial Separation: A trial separation is one where couples temporarily decide to live apart. For a trial separation, there is no need to obtain a court order or make a formal agreement. The couple's intent in trial separations is generally to reconcile, so property acquired after a trial separation will generally be considered marital property. It is still best that a couple comes up with an agreement regarding time spent with kids, usage of joint bank accounts, etc.
- Permanent Separation: In a permanent separation, spouses intend to permanently live apart with no intent to reconcile. After a permanent separation has begun, state courts will often consider all property acquired after the permanent separation separate. This may lead to a dispute as to when the permanent separation began, so, if possible, couples should seek to determine the exact date.
Choosing between a legal separation and a divorce can be a highly fact-dependent decision. Couples should weigh all their options and consider both their personal and financial interests before filing any paperwork with the court.