Divorce vs Separation: Why Is It Better To Get A Legal Separation Than Divorce

by LegalViewAdmin
Torn Marriage Certificate

Many couples in the United States decided not to continue with their marriage and just choose to end it. As per the statistics, in every 13 seconds, one divorce happens in America, which brings down to more than 2 million divorces happening each year. Legal separation on the other hand is an option that is less likely favored by many without even digging deeper into this option.

If you are torn between legal separation vs divorce, you came to the right place. In this article, we will talk about the things that most individuals on this path are asking. First, let us know the difference between separation and divorce.

Legal Separation vs Divorce

To better understand how separation and divorce can benefit you it is best to understand their differences first. Legal separation can be made due to various circumstances. For example, both parties agreed that their marriage is experiencing difficulties at the moment but do not want to end their marriage just yet, as they are still hopeful that they can fix it.

For instances that you wanted to live separately from each other, yet still, want your marriage legally binding, a legal separation would be your best option. This way, even if you are still legally married by law, all your assets will be legally divided through a specific legal separation agreement that both parties agreed.

Divorce, however, will terminate your marriage and gives both parties a chance to re-marry to another person. The nullity of your marriage is one of the significant differences you can get when you choose to file for a divorce.

Another difference you will notice if you compare legal separation vs divorce is your marital status. Since in legal separation, the law still considers you husband and wife, you will have to retain your marital status. In addition, your spouse will remain the next of kin when it comes to making decisions in terms of medical and financial situations.

In connection with the financial decision-making, you must also remember that being legally separated from your spouse will still make you liable for your partner’s debts and other liabilities. During the divorce, debts and other liabilities are one of the things that get sorted out in court. However, you must still check your state’s local law regarding legal separation as it can vary from one state to the other.

Why You Must Consider Legal Separation Over Divorce?

Choosing between divorce and legal separation is only a personal preference. Most individuals who opt for a legal separation are those who base their decision on their religious or personal belief where it forbids the termination of a marriage. For these couples, filing for a legal separation can give them the benefits of being divorced while keeping the sanctity of their marriage according to their beliefs.

The additional benefits you can get by filing a legal separation instead of divorce are as follows:

  • Health Care Benefits: Legal separation agreement allows you to still have right over the benefits of your spouse’s health care and some social security benefits that get terminated in case of divorce.
  • Reconciliation: In some cases, spouses end up reconciling and decides to settle their differences which results in them getting back together. If you are only filed a legal separation then reconciliation won’t be a problem. Divorce on the other hand is a decision that can’t be undone.
  • Can Buy You Time: A legal separation can help buy you some time if you are not yet decided whether to reconcile or totally terminate your marriage, while it gives you an assurance that in the meantime, all properties you acquire during this time will only be solely owned by you.
  • Formalize Separation: In some states, couples are required to live separately within a specific period before they can file a divorce which is why they tend to file a legal separation. A legal separation is a huge help to formalize the couple’s separation and keep it for the record.

Different Types of Separation

To further understand what legal separation can provide you, here are the different types of separation that you might want to take note of.

Trial Separation

This is what couples opt for when they need to take a break from their relationship and wanted to live separately as they are weighing between divorce and reconciliation. In a trial separation agreement, all the legal rules that apply as a married couple are still in effect in terms of property ownership.

All the money you earn and property that you purchased during the trial separation period is still considered as jointly owned by you and your spouse. However, you must still refer to your state’s law regarding property ownership.

In the event that you and your partner decide to get back together, it is best to write an agreement about certain issues that will surely arise in the future to avoid being in the same situation again. If both of you decide to make the separation permanent then you must read the next type of separation.

Permanent Separation

If you are already living apart with no intention of getting back together and are not yet divorced, this is considered as permanent separation. In some states, living separately will change the property rights of couples, if and only if, you do not have any intentions of reconciling.

In this case, all the assets and debts each spouse acquired during the separation will only be owned by the one who acquired them. During permanent separation, all debts that your partner acquire will no longer affect you. The same goes for the properties your partner acquires where you will no longer have a right.

Due to its significant impact on both your property and liabilities, the exact date of the separation will be contested in a divorce trial. If you do not have the intention of getting back together it is best to avoid seeing your ex and spending the night together as it can change the separation date once again and you have to count back at one.

In this case, all your assets and debts will once again conjoin and each of you will once again become responsible for each other’s debts, finances, and properties. Once you have made an agreement, there is no need to rush in filing a divorce, there are so many couples who stayed married for the sake of the insurance.

Legal Separation

In some states, if you choose legal separation, you will need to file a request at the family court. If you choose to go this path, you will have to look into a lawyer referral service to help you find a lawyer that can represent you and assist you in filing for legal separation.

Having a lawyer to help you out with the process and provide legal advice would ease the process on your part. Being legally separated is another different legal status one holds. It is way different from being divorced and being married. It is kind of an in-between status of married and divorce.

Aside from religious reasons, individuals opt for legal separation due to their desire to keep the health insurance benefits that will become invalid during a divorce. Some couples are living happily in a legal separation state for so many years. Some keep it the way it is, while some only filed a divorce if they want to remarry.

What To Expect On A Legal Separation vs Divorce Case That Everyone Must Know About

Both legal separation and divorce will tackle the same issues such as alimony, child custody and support, and property division in the court trial.

Alimony or Also Referred to As Spousal Maintenance

Alimony is a financial support that is given by one spouse to the other when their marriage fails. The purpose behind spousal maintenance is to redistribute wealth and for both spouses to have financial equality even if their relationship ends.

How long or how much alimony should be given to one spouse will depend on various factors like:

  • Length of Marriage – In most cases, the longer the marriage the more one spouse becomes financially dependent on the other.
  • Standard of Living – The court will also consider the standard of living the dependent spouse is accustomed to during their marriage.
  • Financial Future of The Paying Spouse – If the paying spouse will likely earn more in the future, the court will impose a higher alimony amount. However, if the financial future of the paying spouse says otherwise then the court will also decide based on that circumstance.
  • Financial Future of The Dependent Spouse – If the court determines that the dependent spouse will not likely earn enough in the future, he/she may require more spousal maintenance.
  • The Health and Age of the Dependent Spouse – Younger and healthy spouses might only acquire a shorter period of alimony and with a minimum amount as they are still capable of acquiring a job to provide for themselves. Older and unhealthy spouses on the other hand may be granted a longer with a higher amount of alimony as they are not already fit to provide for their financial needs.
  • If the Dependent Spouse Made Contributions to The Paying Spouse’s Career or Education – One of the common examples for this is when the dependent spouse suffered an economic disadvantage because he/she is raising their children instead of pursuing his/her career or education. In this case, the dependent spouse will expect to get compensated accordingly by the paying spouse.

Child Support or Child Maintenance

The next thing you will go through on a legal separation or divorce case is child maintenance. This is a financial obligation of the parents to their children that will be given by the non-custodial parent to the custodial parent to balance the financial obligation for their children. It usually covers a child’s education, transportation, food, clothing, and shelter.

Child maintenance can be paid monthly, bi-weekly or weekly, depending on the agreement you made that is approved by the court. When it comes to the amount of child maintenance, each state in the United States has its own guidelines. Consult with your state’s law in regards to this matter to know the minimum required amount for child maintenance.

Family Picture torn apart

Custody of the Child

In the separation agreement, the custodial parent or parent that has custody over the child will be the one who has the care and control over the child. He/she will be the one who will have the responsibility and the right regarding education, health, and welfare of the child.

The parent who does not acquire the custodial right to the child will be given an access or visitation rights where he/she can spend time with the child based on what both parties agreed upon. You also have to keep in mind that the court can change the arrangement anytime if they feel that the arrangement does not meet the best interest of the child.


Another matter that will be settled is the division of property. It is advised to talk to your spouse and settle the division of your property with a mutual agreement. Dividing your asset will be based on you and your partner’s set of circumstances.

List down all your assets with their given value. If you are having trouble appraising a specific asset, it is best to seek an expert’s opinion to ensure that you are not over or undervaluing your assets. After you determine all your asset’s value, you must decide who gets what. In this stage, it is recommended to have an open mind and always aim for fairness and equality to be able to go through it smoothly.

In General, both divorce and legal separation have pretty much the same proceedings when it comes to the aforementioned matter which is why some people settle in a legal separation status and didn’t bother filing a divorce if it is deemed unnecessary for both parties.

Additionally, the grounds for legal separation is not entirely different from the grounds in divorce. Both can be performed due to cruelty, incompatibility, abandonment, and adultery. This is why the proceedings of both cases are very similar and with only a little noticeable difference which is the nullity of your marriage.

Can You Date While Being Legally Separated?

People are asking if it is considered adultery if you get into a relationship if you are legally separated but not yet divorced. The answer is yes since you are just allowed by the law to live in a separate house but are still considered as a married couple.

If you date or got into a relationship while you are not yet divorced and have a sexual relationship with that person, in the eyes of the law, you are committing adultery. However, the law from different states will once again come into play as they have their own law in regards to separation whether it is formal or informal.

When Will A Court Refuse To Recognize A Separation Agreement

Not all instances the court order will grant a separation agreement. There are also times that your separation agreement gets rejected due to various circumstances such as:

  • The separation terms do not provide the best interest of your children.
  • One of the spouses does not disclose any particular assets or liabilities.
  • If the agreement is unfair.

When the court notices these issues in your petition for separation, it is highly likely that your request will be rejected. It is best that you make sure that everything stated in your separation agreement will not have any of the mentioned circumstances.

Once you provide what is rightful on the separation agreement, the court will then decide and allow the separation of the spouses. This decision will be legally recognized by the court and the law itself.

So, Is It Better To File For Legal Separation or Divorce?

This all goes down to what you prefer as an individual. What works for other people might not work for you. There are also circumstances that will require you to file a legal separation as a part of the divorce process depending on your local legislation.

Both options have their pros and cons which means that no matter what you choose for yourself, you will have to face some consequences. To determine which one is best for your situation, you must understand what you want. After careful deliberation and you decided to go for divorce then you must follow your instinct.

Contrary to most people thought, legal separation is not cheaper o faster than divorce. Both cases will undergo the same process and tackle the same issues which is why both are equal when it comes to fees and the pace of the case.

To Sum it Up

The issue surrounding the legal separation vs divorce topic is so complex. Each option affects different factors in your life yet it provides similarities as well. Weighing its differences and similarities will definitely help you in choosing your path. However, legal separation might provide you more benefits than divorce can give.

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