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Legal Separation vs. Divorce

If you are considering filing for a legal separation or divorce, here are the differences, benefits, and disadvantages.  

In both a legal separation and a divorce, there is an agreement between the two spouses (a separation agreement or divorce decree) that is ordered by the court. This agreement sets the rules that you and your spouse will live by once you are no longer living with one another. The separation agreement or divorce decree spells out how your finances will be separated, how child custody and child support will be divided, how the property will be divided, and who will pay spousal support.

The separation agreement or divorce decree can be reached amicably by the two of you, or you may need the help of an arbitrator or mediator. If you can't come to a mutual decision, the court may step in. Either way, 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.

With a legal separation, you are still married in the eyes of the law

If you get a legal separation, you and your spouse cannot remarry. You will even record yourself as married on most government forms. With divorce, the marriage is over in the eyes of the law. Legally, you can remarry.

If legal separation is allowed in your state, here are some of the benefits to consider:

  • In some states, legal separation is required 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.
  • You can keep the health insurance coverage provided by your 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.
  • Legal separation is a good option if 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 note that each state mandates legal separation differently

There are six states that do not offer some form of legal separation at all, including Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas. In some states, legal separation also requires that the two spouses live apart from one another (in different residences at different addresses).

If legal separation is allowed in your state, here are some disadvantages to consider:

  • 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 you and your spouse are considering separation or divorce, it is beneficial to contact a qualified attorney in your area so they can help you understand the advantages and disadvantages of any next steps. A legal separation can be just as complex as a divorce (and just as costly). Legal separation may be a step you can skip depending on the laws in your state.

If you plan to share custody of your children, try a co-parenting communication service

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