What Is The Difference Between Legal Separation And Divorce?

The dissolution of a marriage can be a difficult and time consuming process. There are many legal and ethical considerations that must be handled. Legally speaking, there are two options when a married couple decides that they can no longer live together - a legal separation or a divorce.

When you're talking to most people, they use the terms "separated" and "divorced" interchangeably, but these two things are not the same. In fact, they are pretty different and it's important that you understand the distinctions between them.

There are several key differences between the two options. Before you decide on any course of action it is important that you check the laws in your state of residence as family law varies from state to state. Some states do not even allow for a legal separation, although the two spouses can still draw up a legally binding separation agreement on their own, while other states require a legal separation of at least one year before a divorce can be filed for.

Legal Separation

A legal separation is a contract drawn up by the courts that allows both parties in a marriage to live separately while still maintaining the rights and responsibilities of marriage. Often it is considered a trial separation, allowing both spouses some room to step away from the anger and fighting of the relationship and cool down before deciding whether they want to remain married or not.

The details of a separation may vary, but here are the basics:

• Spouses agree to live separately but remain married.
• A court order is drawn up defining each parties' rights and responsibilities, including child custody and if relevant, child and/or spousal support.
• May keep joint property and bank accounts and each spouse may claim a legal right to assets acquired after the separation unless expressly forbidden in court documents.
• The parties are still legally married so they may keep health and other benefits coverage.
• They are still considered next of kin - can still make medical or financial decisions for each other.
• Each spouse still has a legal right to the property or benefits upon the death of the other.
• Each may still be held responsible for the debt of the other.
• They can not remarry.

With a legal separation, this can give you time away from each other without having to go through the whole divorce process. If you and your spouse are going through a very difficult time, this separation can give you some space and a cooling down period. There have been countless marriages that have been fixed, just by taking a time of separation.

Another advantage of separation versus divorce is that you will be able to receive the benefits of your spouse. If you are a stay-at-home mom, and you don't have a health insurance plan, and you receive your coverage through your spouse's work, then you would lose that coverage if you were to be divorced. If you're worried about losing those insurance benefits, then a separation might be a better option for you.

Divorce

Divorce is the final step in the dissolution of a marriage, whether or not you first had a legal separation. Once the divorce papers have been signed by both parties and delivered to the court the marriage no longer exists.The parties no longer have any legal rights or responsibilities to each other except those expressly set in the divorce decree.

Divorce basics:

• The marriage is dissolved.
• The former spouses are not responsible for, or to, each other in any way except those agreed upon and filed with the courts.
• The divorce decree is a legal document in all states and all details as far as children and support must be adhered to.
• All joint assets are divided and spouses have no legal right to any property or assets acquired by their former spouse after the divorce.
• In most cases, the former spouses may no longer provide health coverage for the other.
• They are no longer considered next of kin - they have no legal right to make medical or financial decisions for each other.
• They are not responsible for any debt acquired by the other after the divorce.
• They can legally remarry.

Keep in mind that the main difference between a legal separation and a divorce is that a divorce can not be undone. If you are considering leaving your husband, seek the counsel of a family law attorney who is familiar with the domestic laws of your state. Once you know the details, you can make an informed decision about whether a divorce or a legal separation is the right choice for you.

Bottom Line

I know that going through the divorce process or the separation process can be confusing and difficult. There are dozens of different factors that you will need to consider and it's an emotional time that will make everything much more difficult. It's important that you look at all of your options to decide which one is going to be best for you and your family.