When you start experiencing problems in a marriage, you may want to leave your spouse. But should you file for a legal separation or a divorce? This is a tricky question, as both can dramatically affect your life. Here’s everything you need to know about the differences between legal separation and divorce.
What Is Separation?
A separation represents time away from your marriage. It is when both spouses decide that they want to explore living apart from each other as they attempt a reconciliation of problems or choose to officially divorce.
Most people physically separate, meaning they each have a different physical residential address. However, living apart doesn’t always mean that you live in different residences; a separation may have a couple remain in the same household for financial or custody reasons. In this case, the couple chooses to live as roommates instead of as a married couple.
Separations can be informal or formal. An informal separation doesn’t involve the courts; the couple chooses to live apart while working on divorce proceedings. A formal separation, also called a legal separation, is approved by the courts and can have an effect on marital property and taxes.
While separated you remain legally married and are not allowed to remarry. You must get a divorce to be eligible to remarry.
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Separation Agreements
When you separate, it is a good idea to create a separation agreement that outlines key details about the separation. Think of it as a contract between you and your spouse about the terms of the separation. You want the separation agreement to state the date of the separation. This is important in determining if the accumulation of assets during the separation become marital property or not.
The separation agreement will also outline who pays the bills and with what money those bills will be paid. It is up to the parties to decide if marital funds will be used for bills. The separation agreement lists bank accounts and credit cards, identifying which, if any, will be shared.
One of the most important elements of the separation agreement is the custody section. This section names the minor children the couple shares and outlines a physical custody schedule – who will the kids live with or how is custody split. It states whether legal custody remains shared and defines a child support amount for the duration of the separation.
There are three types of separations to understand.
Trial Separation
This is a voluntary separation during which nothing is filed with the courts and is meant to be for a limited period of time. A couple may do a trial separation in hopes that they can overcome their problems and reconcile.
If the couple doesn’t reconcile, they usually file for divorce after the period of time has passed. In a trial separation, assets and debts are usually still considered marital property. Many couples do a trial separation without a separation agreement, though this is highly recommended to ensure there are no miscommunications or assumptions made about assets, debts, bills and custody.
Permanent Separation
A permanent separation is one where the couple doesn’t feel that there are any hopes of getting back together. While there is nothing stopping a couple from getting back together during a permanent separation, it should be done with the understanding that it can affect marital property. Should the couple get back together, assets and debts remain marital property.
Legal Separation
Legal separations are those that go through and are approved by the courts. While 42 states recognize legal separations and require a proceeding similar to a divorce proceeding. Usually the couple submits a settlement, but if they cannot agree, the judge oversees the disbursement of assets and debts between the two parties and will decide custody and support arrangements if appropriate or if the parties can’t agree.
Some states limit the time on a legal separation, while others allow a couple to be separated indefinitely.
Differences Between Separation and Divorce
In simple terms, the difference between a separation and a divorce is that the separation leaves the marriage intact while a divorce ends it. A couple may opt for a separation because they are easier to reverse than a divorce. When a couple is separated, all they need to do is get back together and ask the court to revoke the separation decree to end the separation. They don’t need to re-marry as they would if they were divorced.
There are some other key differences to consider when choosing between a separation versus a divorce.
One of the key differences is that spouses retain next-of-kin and medical decision-making rights when still married but separated. When you divorce, you no longer retain these rights for medical or financial decisions.
Most states divide marital property based on its value at the date of separation. In community property states, spouses lose rights to property acquired by their spouse after the date of separation. If you separate and reunite, even for a short period, the date of your separation changes and this affects the property distribution. If you reunite after a divorce, your assets and debts are already divided.
When you separate, you can often retain your spouse’s health care benefits. You lose these if you are divorced. However, this can vary based on benefits plans and should be carefully reviewed before deciding to separate.
Legal Separation vs. Divorce: Similarities
Both a separation and a divorce allow each party the space to live their lives independently. While a divorce formally severs the ties between the couple, a separation agreement often becomes the outline for a divorce decree. It determines how assets and debts are divorced, allowing each party to move on, date other people, make independent investments in most cases and not be beholden to their spouse.
Required Separation Before Divorce
Some states like North Carolina require a separation before allowing couples to divorce. Not every state requires this, but some also have waiting periods before a divorce can be finalized. While this doesn’t directly state that the couple must be separated, it usually means that the couple will spend the waiting period separated to meet the time requirement to get a divorce.
Pros and Cons of Separation Before Divorce
Couples should consider the pros and cons of a separation prior to divorce.
The pros of a separation include:
- Gives you time to determine if you can reconcile
- Can retract the separation easily by simply getting back together and having it revoked by the court
- It is legal to date other people
- Less expensive than a divorce in most cases
The cons of a separation include:
- May limit tax deductions when filing as married filing separately
- Doesn’t guarantee that benefits such as health insurance will continue for the separated spouse through an employer-sponsored plan
- Requires a divorce proceeding if you decide you do want to end your marriage
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Frequently Asked Questions (FAQs)
Is it better to get divorced or separated?
Couples need to determine if one or both parties wish to remarry. If they do, a divorce is critical to meeting that objective. However, if the couple feels that they might want to get back together, a separation is the best alternative.
What should you not do during separation?
Check the laws in your state regarding legal separations. You might not want to temporarily get back together with your spouse if you are separated n because it can affect rights to marital property that you thought were separate. Reuniting, even for a night, can reset the clock on a required separation period as well.
Does separation always lead to divorce?
Some reports show that 80% of couples who separate end up divorcing within three years.
