Divorce vs. Legal Separation: What’s the Difference?

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Legal separation and divorce have a shared aim — to create space (both legal and physical) between you and your spouse. Both legal arrangements result in a separation of finances and living arrangements. 

If your marriage has become untenable, you may be wondering about divorce vs. legal separation and which option is right for you. In this article, we’ll explore the divorce process and whether divorce or separation may be the best choice for you.

What Is Legal Separation?

What is legal separation? The legal agreement is often less understood by the general public than divorce. A legal separation allows a couple to remain legally married while living completely separate lives.

While not as final as a divorce, a legal separation is a significant legal step.

You cannot just say that you are legally separated. Legal separation requires a court-approved document that both parties sign. The legal document typically lays out how property, parenting, and spousal support will be handled.

Many couples begin with a legal separation as they deal with signs of divorce. The legal state can lead to divorce, reunification, or indefinite legal separation. At any point during the separation, the agreement can be modified as needed.

What Is a Divorce?

A divorce also results in separation. The most important aspect of a divorce is the legal termination of a marriage, which cannot be reversed.

Divorces are generally more complicated than separations. Each state will have specific guidelines for how a divorce can be filed.

Most states have a mandatory waiting period that both parties must adhere to. California, for example, has a six-month waiting period.

A typical divorce involves one party making a proposal. The proposal typically outlines how property is divided, spousal support (if applicable), and child support terms. The other party then reviews the proposal and accepts or rejects parts of the agreement.

The back-and-forth negotiations can take weeks or months. Ideally, both parties will come to an agreement before the waiting period ends. If both parties agree on the final terms of a divorce, a judge can sign the agreed orders at the end of the waiting period.

Often, one or both parties may end up contesting a divorce. In that situation, judges or lawyers use binding mediation or a court hearing to complete a divorce.

Benefits of Legal Separation

Common marriage problems that can be worked out may best be handled through a legal separation. The most important benefit of legal separation is the maintaining of the marriage status, which often comes with significant tax benefits.

If both parties decide that reunification is better than a divorce, legal separation allows for a straightforward process of returning to cohabitation.

Legal separation is also ideal for couples that wish to remain married for religious reasons. Some couples may decide that the relationship is no longer tenable but they still wish to remain married on religious grounds. In those situations, legal separation can allow both parties to live separate lives while retaining their marriage status.

Other reasons couples may opt for legal separation include these common situations:

  • One or both parties wish to enjoy tax-related benefits of marriage
  • Both parties are not 100% sure that they wish to end the marriage
  • One party wishes to retain health insurance benefits that require marriage
  • The husband or wife wishes to reach the 10 year marriage requirement for social security or military benefits

Divorces are final. Legal separations allow more flexibility for couples who wish to live apart yet retain the benefits of marriage.

Benefits of Divorce

There are a number of reasons why a marriage may no longer be viable. Divorce is considered the last resort when a marriage no longer serves the interests and goals of a married couple.

While the decision to divorce can be emotionally difficult, a divorce can open up possibilities for both parties to live fuller, happier lives apart.

While a legal separation offers some level of resolution, divorce offers a level of finality that allows both parties to move on with their lives. Once a divorce is finalized, either spouse can legally remarry.

A divorce may be an ideal option when:

  • There are no financial incentives for staying married
  • The marriage is no longer tenable
  • One or both parties wish to remarry someone else
  • Legal separation doesn’t offer enough closure
  • Both parties want to make financial and medical decisions independently

A divorce is final, meaning there’s no way to reverse the decision once a judge has signed the order. If you are considering exploring the possibility of getting a divorce, the first step is to speak with a qualified divorce lawyer.

Which Option Is Right for Me?

The decision to seek legal separation or a divorce is a deeply personal choice. Neither decision should be made in haste. Speaking to trusted friends, relatives, and members of your faith-based community can help you find the option that is right for you and your former partner.

In general, legal separation serves former couples who have a reason to maintain their marriage status. This may be for religious, financial, or personal reasons. Divorce serves both parties when neither side has a reason or desire for staying married.

Know the Basics of Divorce vs. Legal Separation

If you are weighing divorce vs. legal separation, you are not alone. Around 75,000 Texas couples divorce each year. While emotionally difficult, those decisions can lead to brighter possibilities for both parties involved.

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