Legal Separation vs Divorce: Pros and Cons

“The difference between [legal separation and divorce] centers on the technicality of whether the parties are married in name or not,” family law attorney Jenna Blackmon told Mom.com.

A divorce is a dissolution of marriage</a>; it ends the legal coupling of two people. A legal separation is similar in that you will still need to divide assets and debts, determine custody orders, agree on spousal support, as well as child support. The legal separation is filed with the courts and becomes an official court order–you just remain legally married. This is so that if you decide not to divorce, you only need to retract the legal separation court order.

A legal separation is different than a trial separation, where a couple may decide to live apart and maintain separate financials. When it’s legal, you are bound by the court order you agreed upon and must legally operate as separated.

A separation may be better than a divorce for many people. There have been studies that show that while most people who separate end up divorcing, nearly 15% remain separated indefinitely.

Some of the positives of a legal separation include:

• Time coupled with being apart to see if they can fix things. While this doesn’t always happen, many people feel better about the divorce if they try a legal separation first.
• Insurance coverage can continue for a spouse who doesn’t have health insurance on his or her own.
• The couple may receive some tax benefits that can help stabilize the financial picture before settling on a divorce.
• It can positively affect someone’s ability to qualify for a higher Social Security amount or pension benefits.
• Any religious or ethical issues about divorce can be addressed and resolved (when possible).
• The separation agreement can transform into the divorce decree, making the actual process of divorce mere paperwork.

Couples should carefully weigh the benefits of a legal separation and talk to respective advisors about how it will affect them. Advisors include tax and financial experts, as well as any religious and legal experts who the couple wants to weigh in on the potential divorce.

While there are a lot of positives to consider when choosing a legal separation over a divorce, there are some negative aspects to consider as well. Couples shouldn’t just enter into a separation because it sounds like the first step to a divorce.

Allanah Boyd, mom of three, told Mom.com that separation, “Seemed like the proper thing to do for the kids, but the reality is we quickly decided in the court process to change our filing to dissolution–not separation.”

Some of the negatives of a legal separation include:

• There are costs to consider in getting a legal separation that are comparable to a divorce. You will need to come to an agreement or try it in court to get the court order. This can get expensive.
• May become emotionally taxing and leave people in limbo not sure if they are trying to work it out or just biding time to end it.
• Not all insurance policies extend coverage to a separated spouse. This means that if you are doing it for a practical purpose, you may be thwarted in your efforts.
• Joint accounts may become susceptible to one spouse using more than agreed upon. There is no control over joint bank or investment accounts and that could lead to money disappearing as one spouse decides to plan the final divorce.
• Some state restrictions prevent anyone who is legally separated from entering into a new relationship. This could make testing the waters of a divorce hard when people can’t realistically move on with a new relationship.

As hard as it may be, the reality is that if your marriage is truly over, it may be easier to rip the Band-Aid off and start divorce proceedings. The process is the same and you won’t have to deal with some of the negative aspects of a legal separation.

To hear experienced insight from divorce attorney Jonna Spilbor on how to choose between legal separation and divorce, check out this episode of Divorce Tips: