What is the Difference Between a Legal Separation and Divorce?

Which is best for your situation?

Legal Separation vs. Divorce
Bill Oxford/Creative RF/Getty Images

Unlike divorce, a legal separation does not put an end to the marriage, it enables you to live separately but remain married. During the time you are living apart, you have a court order that outlines the rights and responsibilities of each spouse.

What is Covered in a Legal Separation Agreement?

Your legal separation agreement will cover all issues that would be covered in a final decree of divorce.

If you have children how much child support you receive or pay will be documented. Custody will also be documented according to the agreement the spouses come up with together. 

You remain legally married while choosing to live separate lives. Issues that can be addressed in a separation agreement are the division of marital assets and debts, child custody and child support, visitation schedules and spousal support.

The same issues addressed during the divorce process are also addressed in a separation agreement. A separation agreement can protect your interests until the decision is made to file for divorce. The separation agreement also sets a precedence for the divorce that may follow.

What Happens if You Divorce After a Period of Separation?

If you divorce after a separation and your case goes to court, a judge is likely to assume that since you were satisfied with the separation agreement, the agreement should carry over to the divorce settlement agreement.

For that reason, it is important that you come to a separation agreement you can live with long term.

If, however, the terms of your separation agreement were not workable during the period of separation you can petition the court to draw up a new divorce settlement agreement. A legal separation agreement can be a learning tool to use to find out what you can and can't live with after​ the divorce.

6 Advantages to Legal Separation

Although a legal separation and divorce have many things in common there are some advantages to separating rather than a divorcing. Those advantages include:

1. It allows couples time apart, away from the conflict of the marriage to decide if divorce is what they truly want. A separation can be a cooling down period if there has been a lot of conflict in the marriage. 

It can also be a period of time when a couple can take advantage of couple's counseling and finding news ways to handle conflict when it arises in the marriage. 

2. It allows for the retention of medical benefits and certain other benefits that divorce would bring to an end. Legal separation, unlike divorce, doesn't leave one or both spouses without healthcare insurance.

Legal separation may be a better option if a couple is struggling financially or if a woman has been out of the workforce for a long period of time. A period of separation will give a long-term stay-at-home mother the opportunity to become more financially stable while style able to enjoy the benefits of marriage. 

3. If your religious beliefs conflict with the idea of divorce, you are able to live separately and retain your marital status for religious beliefs.

4. If you are a military spouse, you may wish to remain married for 10 years so that you can take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act. Please be aware, though, that just as in civil cases judges have great discretion when it comes to splitting assets like retirement income during a military divorce. 

5. Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse. If at retirement age your spouse will draw more social security than you, it is to your benefit to remain married for 10 years so you can draw a larger sum of social security by drawing on your spouse's social security retirement. 

6. If the decision to divorce is made, the legal separation agreement can be converted into a divorce settlement agreement.

This, after the decision to divorce, has been made will save the expense of a long and conflicted journey through the family court system.