In both a legal separation and a divorce, there is an agreement between the two spouses (either a separation agreement or divorce decree) that has been ordered by the court. This agreement sets the rules that you and your spouse will now live by since you are no longer living with one another: how your finances will be separated, how child custody and child support will be divided, how the property will be divided, who will pay spousal support, etc.
This agreement might be reached amicably by the two of you, or you may need the help of an arbitrator or mediator. If you can't mutually come to a decision, it may even have to be court-ordered, but at the end of the day, there is a written, court-ordered document that sets the rules and boundaries for how you and your spouse will live, separately from one another.
So, what's the difference between legal separation and a divorce?
With a legal separation, you are still married in the eyes of the law. You can't remarry, and you'll even record yourself as married on most government forms. With divorce, the marriage is over.
Are there benefits to being legally separated vs. divorced?
Absolutely. If legal separation is allowed in your state, here are some reasons why you might choose it:
- It’s required in some states before you can get a divorce. The amount of time you must legally separate before the court grants a divorce varies from about six months to a year.
- To keep the health insurance coverage provided by a spouse’s plan.
- There are social security, military or pension benefits that you might qualify for if you remain married.
- There may be tax advantages to filing as a married couple vs. filing single after a divorce.
- You are unsure about divorce and need to spend some time living apart from your spouse to see if you can resolve your differences.
It's important to remember, however, that each state mandates legal separation differently. Some states do not allow legal separation (or limited divorce as Maryland calls it) at all, including Delaware, Florida, Georgia, Maryland, Mississippi, New Jersey, North Carolina, Pennsylvania, and Texas. However, Maryland does have a ‘limited divorce,' and Georgia has ‘separate maintenance,' which are both like a legal separation.
Legal separation in some states also requires that the two spouses be living apart from one another in different residences at different addresses. So, you can't be living in different rooms of the same home and be legally separated.
Of course, there are disadvantages to a legal separation too:
- You may still be responsible for your spouse’s debts.
- Your spouse is still considered the next of kin and can make medical and financial decisions for you and may still retain property rights if you die.
- You are not free to marry anyone else.
If your marriage is in trouble, it is essential to contact a qualified, local attorney in your area who can help you understand the advantages and disadvantages of any next steps you might take. As you can see, a legal separation can be just as complex as a divorce, and as costly, and may be a step you don't have to take depending on the laws in your state.