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

If your marriage is unhealthy, you may consider getting legally separated as an alternative to divorce. Unlike divorce, legal separation doesn’t end your marriage; instead, it allows you and your spouse to live separate lives while remaining married. While this sounds simple, there are quite a few things to know about legal separation vs. divorce.
What to Know About Legal Separation vs. Divorce:

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What is Legal Separation?

Legal separation is an alternative to divorce. Designed for people who can no longer stand living together but who don’t want to end their marriages right away for religious or other reasons, this process is an arrangement that is governed by a legal separation agreement. Legal separation agreements are legally binding, and provide details concerning child custody arrangements, spousal support, and particulars concerning living arrangements. Legal separation is different from just living apart. It provides certain stipulations that each party has to live up to and it provides legal protection in the event one spouse decides not to follow the rules.

Grounds for Legal Separation

The grounds for legal separation are often the same as the grounds for divorce. These include:

  • Adultery
  • Physical abuse
  • Abandonment
  • Irreconcilable differences
  • A spouse being sentenced to 3 or more years in prison
  • Voluntary separation

The grounds for legal separation vary from one place to the next. Be sure to find out what laws in your local area allow before proceeding with the decision about whether to get legally separated instead of filing for divorce.

The Difference between Legal Separation and Divorce

The primary difference between legal separation and divorce is that a legal separation recognizes that a marriage is valid and legal. There are some additional differences to be aware of.
Legal separation isn’t recognized everywhere. In many places, there is no process for legal separation; instead, “separation” is a term that’s used to establish that the parties have not been living as a married couple. Before choosing between legal separation and divorce, be sure that both options are available where you live.
Legal separation may have an effect on any eventual divorce settlement. If you are primarily interested in legal separation now but believe you may want to file for divorce later, be cautious while drafting your legal separation agreement. This legal contract, which lays out all the terms of the separation, can sometimes be converted to a divorce decree and used as is. Judges often assume that since parties are happy with the terms of their legal separation agreements, they will be fine with a divorce decree that uses the separation terms as status quo.
Legal separation can have an effect on property rights. One of the most important differences between legal separation and divorce is that in a legal separation, both parties retain rights to marital property. If a divorce follows a legal separation, the court may decide to use the date of separation as a cut-off point for property rights.

Similarities between Legal Separation and Divorce

If you are considering becoming legally separated, it’s just as important to know about the similarities legal separation and divorce share as it is to know about the differences between the two processes. In most places, the same issues that are addressed during the divorce process are considered in the legal separation process. If you have children, custody arrangements will be made. Concerns including the sharing of joint property, responsibility for debt, and occupation of a co-owned home will be addressed as well.
Legal separation and divorce have something else in common: Both procedures can be emotionally as well as financially upsetting. To become legally separated, you’ll have to go through the extensive process of negotiating issues including child custody, child support and visitation; property distribution and spousal support; and benefits such as health insurance.

Legal Separation vs. Divorce: Pros and Cons

Those who choose legal separation over divorce do so for many reasons. However, there are a few significant pros and cons that should be considered.


Pros- The major pros for legal separation are financial. Many but not all states still recognize legally separated couples as married and they are therefore entitled to the benefits of married couples. Theses include:

  • Healthcare and insurance benefits.

  • Tax benefits- a legally separated couple can still file income taxes jointley.

  • Social security and pension benefits

  • Avoid mortgaging or splitting the sale of a home.


Other pros include social reasons, such as feeling more comfortable as a married couple, or concern for any children or family involved.


Cons- Those who choose to remain legally separated may likely encounter the following challenges:

  • Shared debt- as a married couple, the debt is often shared between both parties, even if their expenses are not.

  • In the even of divorce- if the couple does eventually decide to divorce after a significant amount of time, it is possible that their separate financial situations will shift significantly over time and make divorce more complicated later on.

  • Issues of Inheritance- if a couple chooses to remain separated and one or both spouses pass away, issues of their inheritance can become complicated, especially when they leave different instructions for their shared possessions.


Making a Decision About Legal Separation vs. Divorce

Both legal separation and divorce are complex agreements that should be entered into only after making a careful analysis of the benefits and drawbacks of each. Before moving forward with a legal separation or divorce, research the laws in your area and be sure that you have a clear understanding of how either process will affect your life going forward.

The idea of legal separation sounds simple at first, but there are a few more significant distinctions to be made about legal separation vs divorce.
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  1. Jordan Smallville says:

    Thanks for this informative post. On the topic of separation and divorce..m my ex and I are likely going to be getting one, but we can agree to a lot of terms and conditions on our own. We feel that involving lawyers would be a huge waste of money and want to go the uncontested route. I was wondering if you recommend using online tools for uncontested divorces (i.e. separation agreements and whatnot). I found this website: … what do you think? Is it worth it, or is it better to get a lawyer?

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