Separation vs Divorce: Know the Difference and Your Options
No one plans on getting divorced but between 40 and 50 percent of marriages in the US end there. Ending a marriage is a tough experience and the decisions you make during a divorce or separation will have significant implications for your life, so it is critical you make the right choices and get the details right.
One of the most critical decisions you will make will be whether to get a separation vs divorce. Whilst similar, there are some very important differences and you need to know which is best for you. Here is your guide to making this important decision.
Ending a Marriage
When a marriage ends you have two options, divorce or legal separation. Divorce and legal separation are similar in most respects. In both cases you and your spouse will need to agree on these important issues:
- Child support
- Child custody and visitation
- Allocation and division of assets and debts
- Alimony (also called spousal support or maintenance)
How these issues are resolved will be included in either the divorce or separation court order.
What Is the Difference Between Legal Separation and Divorce?
When you get divorced, you and your spouse’s marriage is dissolved. Your marital status will change from married to unmarried.
Divorce is permanent. The judge will issue a formal order that ends the marriage. Now that you are single again you can remarry and file individual tax returns.
If you choose legal separation you will stay married to your spouse and your marital status will remain “married”. A court will still issue a judgment of legal separation.
A legal separation can help manage the pressure, tension, and practical issues that arise when a couple no longer wishes to be together, but it will not end the relationship. If you choose legal separation you will be unable to remarry.
You will also remain married for tax purposes. This means you will have a few filing options depending on your situation. You may jointly be filing as a married couple, married filing separately, or head of household.
If you pass away your spouse will inherit your assets (and vice versa). You can revise your will however your spouse may still have a legal claim to some of your assets.
Legal Separation vs. Separation
It is also important to understand the difference between legal separation and separation. Legal separation involves much more than one spouse moving out of the home.
Some couples will separate and for all intents and purposes sever all connections and communications, but unless the court grants a judgment of legal separation, the couple will remain married.
If a couple physically separates without a legal judgment, this is an informal or trial separation. This separation is still significant as it may impact the legal separation, especially when it comes to determining marital property and support issues.
Why Get a Legal Separation vs Divorce?
There are several advantages to getting a legal separation vs divorce.
The biggest advantage is financial. When you are legally separated you can still file joint tax returns. For many couples, this can reduce the total tax paid.
This is by no means a strict rule and some separated couples will not save on taxes. You need to run the numbers to determine how it will impact your taxes.
Another important financial reason to favor legal separation is health insurance. When you get divorced, it is unlikely you can remain on your ex-spouse’s employer-provided health insurance program.
Legal separation may keep you covered. It used to be very common for insurance providers to continue to cover legally separated spouses, however, this is no longer the case, but it is still possible. Be sure to check this out before making a decision.
If you or your spouse is not a U.S. citizen you will want to consider legal separation as this will allow them or you to stay in the country. If you get a divorce it is possible they could have their visa revoked and be required to leave.
When it comes to practicality a legal separation may offer a couple an intermediate solution. Some couples may not be prepared to permanently end their marriage. A legal separation can give a couple time and distance to decide if they wish to try and resolve their issues or file for divorce.
A legal separation gives both partners an opportunity to more easily adapt to their new lives before deciding how to proceed. The idea of getting divorced can be too much for some couples so a legal separation offers a soft landing.
Getting Divorced After a Legal Separation
If you have gone through the process of becoming legally separated and now decide you wish to get divorced, the process is straightforward.
As you already have a judgment for legal separation, this will have formally settled matters on all issues from property division to support obligations. The only issue that remains now is your marital status.
So you only need to file the papers regarding your marital status.
A Legal Separation vs Divorce
A common question is what happens if one spouse wants a divorce and the other wants a legal separation. The answer is simple, the divorce wins.
Both you and your spouse need to agree on a legal separation. Generally speaking, your partner need not agree to or sign divorce papers for the divorce to proceed. If you file for divorce and your spouse files for legal separation the family court will proceed with the divorce process.
What Is Right for You?
When choosing between legal separation vs divorce there are some important considerations to keep in mind. For the most part, the two are very similar, but in a legal separation, you will remain married. This can have some practical and financial benefits.
A legal separation can also ease the transition out of the marriage rather than jumping straight to divorce. Exactly what is right for you will depend on your situation and needs.