To understand divorce and legal separation similarities and differences in-depth, it’s important to define the terms.
Definition Of Divorce
In the simplest terms, divorce ends a marriage. Whether you live in Alabama or any other state, you need a court to approve a divorce. Courts also help with agreements on dividing property and deciding child custody matters.
Definition Of Legal Separation
Like divorce, you need a court to authorize a legal separation. Legal separations can be defined as court orders mandating the duties and rights of couples when they are living apart but still married.
The notable legal separation vs divorce is in status. In a divorce, the marriage is usually over while individuals in a legal separation are still married.
Legal separation is less common. However, there are notable benefits, such as ensuring spouses resolve any critical issues affecting a marriage.
The legal separation and divorce difference can be explored in several ways below;
A legal separation agreement will cover everything your divorce would be dealing with: child support, custody, division of marital assets and debts, child custody and child support, visitation schedules, and spousal support. You and your spouse will still remain legally married, but choosing to live separate lives, and there can be some key benefits in this arrangement:
You’ll have more time to cool off and think if you really want a divorce. By taking this route, you’ll be able to get some space and also seek couples’ counseling.
You’ll be able to retain medical insurance. Unlike divorce, a legal separation will not leave one or both spouses without medical insurance.
It will be a lesser financial burden. The costs are very different and it might be a good option for couples who are struggling financially or if one of the spouses has been out of the workforce for some time.
It can work better with your religious beliefs. If your faith is incompatible with divorce, a legal separation might work on your side. You’ll be able to retain your marital status while living separate lives.
If you are a military spouse, might want to remain married for 10 years so you are able to benefit from the Uniformed Services Former Spouse Protection Act. However, as Cathy Meyer points out:
Please be aware, though, that just as in civil cases judges have great discretion when it comes to splitting assets like retirement income during a military divorce.
Also for civil marriages, there can be some advantages to remaining married for 10 years, like getting social security benefits.
Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse. If at retirement age your spouse will draw more social security than you, it is to your benefit to remain married for 10 years so you can draw a larger sum of social security by drawing on your spouse’s social security retirement.
If you ultimately decide to divorce, a legal separation agreement can become a divorce settlement agreement. This will make things a lot easier and save you a lot of money down the road.
Status Of A Marriage
As mentioned above, legally separated individuals are still married. The process simply puts marriage on hold. Divorced couples are no longer married. Putting marriage on hold has notable consequences.
For instance, you can’t get into another marriage.
However, there may be benefits of retaining marriage status, such as access to some benefits.
Legally separated individuals can enjoy their right to healthcare, among other benefits like social security that get terminated after divorce. Couples who can’t get along but really need these benefits may consider a legal separation over a divorce.
Decision Making Differences
If you are divorced, your spouse seizes to be the next of kin. Legal separation doesn’t remove you as a next of kin, allowing you to make financial and medical decisions on behalf of the other spouse should they be incapacitated or die.
Differences In How Debt Is Managed
Debt may be the reason why couples choose to divorce or legally separate. Spouses who separate legally are still responsible for each other’s debt in many instances. Divorce usually assigns clear debt responsibilities to spouses before the process is finalized.
Differences In Property Rights
A legal separation doesn’t interfere with the legal rights of either spouse to benefit from the property after death. However, divorce extinguishes such rights. After divorce, you can’t claim any property of an ex-spouse unless in unique circumstances that should be dealt with using a seasoned divorce attorney.
Reconciliation & Remarrying
Legal separation and divorce can also be explored based on the permanency of both processes. Divorce is “more” final than legal separation. While legally separated individuals can reconcile and move on, divorce is final. Individuals who want to get back together after divorcing must remarry to enjoy legal reunification.
Both processes may serve different purposes, but they also have notable similarities. For instance, the court’s say is similar on many matters from child custody to child visitation and property division. When dividing property, the court decides based on unique situations of couples and how the situations relate to property. Courts also decide on separation maintenance. Legal separation has child support and alimony components.
FAQs: Legal Separation V. Divorce
When Should I Seek Legal Separation?
Legal separation can be considered for financial reasons, personal reasons, or both. Marriages are prone to problems. However, they are also great and shouldn’t be ended at a moment’s notice. A legal separation is an option when couples aren’t absolutely sure about ending a marriage and the unforeseen consequences. Legal separation gives couples time off to think critically and make an informed decision while still having safeguards in place.
Legal separation is also ideal when couples can’t proceed with divorce for religious reasons. For instance, some cultures don’t encourage divorce, leaving room for other forms of separation.
As discussed earlier, legal separation can also be done for health/medical reasons. For instance, both spouses may not wish to lose their health insurance benefits even if they don’t wish to stay together. It’s in the best interests of such spouses to agree to a legal separation instead of a divorce that ends such coverage.
Legal separation also has tax advantages. For instance, legally separated couples can still file taxes jointly, which attracts benefits such as tax credits. Divorcees don’t enjoy these benefits.
Lastly, a legal separation can be better for individuals who still want to enjoy social security perks and other perks (military benefits).
While the above information gives good reasons for legal separation, divorce attorneys are the best-placed legal professionals for analyzing individuals’ cases and providing the best advice. Your decision to legally separate as opposed to divorcing should be well informed with all factors in consideration, including state laws.
When Should I Consider Divorce?
Divorce is better than legal separation if there are no benefits of legal separation. Legal separation doesn’t make sense if you won’t enjoy health coverage, military benefits, etc. There should be a notable incentive for legal separation. The incentive can be anything from not being sure to the mutual benefits you enjoy from being “technically” married.
Otherwise, legal separation is involved. The resources spent legally separating are normally used when divorcing, eliminating the need to waste time and just get right into divorce.
If you wish to remarry, you must divorce. It is illegal to get into marriage with another marriage in place. What’s more, divorce is encouraged if you want to end ties with someone completely. If you don’t care about the benefits of legal separation, making financial decisions for the other spouse, and related scenarios, divorce is better.
In summary, divorce is final, while legal separation offers a chance to restore a marriage or continue enjoying certain perks. While divorced individuals can get into marriage again, legal separations are usually done for convenience or because there are mutual incentives.
Given the repercussions of being technically married to someone with who you are no longer living, the decision to divorce or legally separate should be made after seeking legal advice from a seasoned divorce attorney. A lawyer can even advise on different types of separation among other viable options for your case.
So, you are having problems with your spouse. At the time you are unsure of how you’d like to proceed. It’s not really a secret that getting a divorce can be hard.
Is there a middle ground that might allow you and your spouse to settle things and decide if you really want to get a divorce? Yes, and that is a legal separation, and according to Mydomaine, it works a bit different:
Unlike divorce, a legal separation does not put an end to the marriage, it enables you to live separately while remaining married. During the time you are living apart, you have a court order that outlines the rights and responsibilities of each spouse.
What Happens If You Decide To Divorce, After All?
If you are unable to work things out after your separation, the good news is that you’ll have a much easier road ahead. It’s important to keep in mind that you are comfortable with what is set on the separation agreement.
If your case goes to court, a judge is likely to assume that your separation agreement was something you were comfortable with and might carry out the same terms as your divorce agreement.
Charlotte Christian, Esq. is a family and divorce lawyer and founder of Charlotte Christian Law. Born and raised in the Yellowhammer State she still calls home, Charlotte is committed to helping those who experienced loss overcome their hardships and build a new life, stronger and more resilient than they were before. No stranger to trauma herself, including enduring the sudden losses of her father while a young child and husband after 10 years of marriage, Charlotte knows what it means practically and legally to put the pieces in place to create a future filled with security, hope, and opportunity, and find happiness once again. An avid sports fan, you can find Charlotte supporting SEC Athletics.
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