Legal Separation vs Divorce

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Legal separation vs divorce is the confusion every couple encounters when it comes to taking the final dreaded step. The basic difference between legal separation and divorce is that the spouses remain married even after getting separated and the the marital ties are completely severed in a divorce process.

Legal Separation or Divorce?

Many couples face this dilemma while going through a rough patch in their marriage. However, it has to be considered that you need some time off each other for considering whether you want to go for divorce or you want to stay with each other for the rest of your lives. Divorce is considered as an extreme step and there is no turning back once you go for it.

Legal separation is a softer option than divorce where you get to consider things for some time. You can take some time off, sort all the financial, emotional as well as custody issues, stay apart from each other and think about the perks and disadvantages of being married. You will find that there are more perks of the marriage where children are involved. Besides, in some states, legal separation is a kind of trial separation and the couple can reconcile.

The provisions of legal separation set a precedence to the divorce settlement agreement which is legally binding.

Sort all the important issues such as child custody, visitation schedule, child and spousal support, payments for the same, financial issues such as retirement plans, investments, insurance and tax benefits. While signing the document, make sure you are comfortable with all the arrangements mentioned in the agreement. If you are in doubt regarding some of the arrangements, don't sign it, try to negotiate and if your spouse does not agree, take the matter to the court. The court decides on the issue in conflict and that decision cannot be challenged.

Thus, think thoroughly before you decide on filing the divorce or legal separation. If you are in doubt regarding your marriage, file for legal separation so that reconciliation remains an option.

Let's look at both these terms in detail:

Legal Separation:

The definition of legal separation differs from state to state and the provisions are made in the statute so as to smoothen the process of separation. It is allowed in 41 states of 50 which recognize the documentation for legal separation. However, in the remaining 9 states, you either have to be married or divorced.

Legal separation is a golden mean between being married to a spouse you cannot stand and being divorced and a broke after a bitter divorce. In many states, the court forms a decree recognizing that the couple wishes to stay apart (even while staying under the same roof) and do not want to go for cohabitation. After this declaration, the court issues an order defining the roles, responsibilities, duties and rights of both the partners. This decree defines the rights and responsibilities of both the spouses during the period of separation to divorce.

The couple can remain legally married while leading separate lives and going on with their respective lives. Legal separation is an ideal option for couples who have been married for more than ten years and have minor children involved in the proceedings.

The spouses remain married legally and hence cannot remarry unless they get a full divorce. Besides, the laws of inheritance, remain same as they are for a married couple. The property of the deceased spouse is by default inherited by the surviving spouse.


In divorce, the marital ties are completely severed and the status of the couple changes from being 'married' changes to 'divorced' and they are no longer considered as husband and wife. After divorce, each spouse has to relinquish all the rights including the inheritance, financial, property and other investments. The only claim that can be made is regarding child or spousal support.

The divorce is a daunting task which drains you emotionally, is time-consuming and challenging. Besides, it affects the children involved emotionally.

Advantages of legal separation over divorce:

  • As mentioned above, legal separation is a golden mean between two undesirable conditions. This a softer option, which gives a couple some time to cool off and reconsider the possibilities of reconciliation and second chance to the marriage.
  • Besides, even after being legally separated the couple can retain the insurance coverage, tax benefits, medical and health care benefits which would end after the divorce is granted.
  • For the couples who complete ten years of marriage, the spouse can avail each other's military and social security benefits (applicable, if any).
  • For the couples whose religion does not permit them to divorce and they cannot stand living with each other can have the benefits of being married as well as perks of leading an independent life.
Process of filing Legal Separation and Divorce:

The process of filing both legal separation and divorce is almost identical to each other in every state. Only the outcome of the status of marriage differs. The general process is hire an attorney, file a petition, attach the necessary documents, determine the marital and individual property, negotiate and sign an agreement.

The legal separation is granted as soon as you sign the petition. For divorce, the case goes to trial after the signing of agreement, the order of Dissolution of Marriage is passed and then, the divorce is granted.

Make sure you understand the difference between the legal separation and divorce, determine what your situation is and what is the proper action to be taken. Hire an attorney if you feel confused and take the necessary steps.

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