Separation vs. Divorce

You might already know that divorce ends a marriage whereas separation doesn't. But did you know that, like divorce, separation can affect your legal rights?

If you and your spouse are having marital problems but aren't sure if you want a divorce, here's a legal overview that can help you decide if separation is a good option.

• What Is Separation?
• Differences Between Separation and Divorce
• Required Separation Before Divorce
• Pros and Cons of Separation Before Divorce
• Separation FAQ

What Is Separation?

Some married couples want a break from each other but aren't ready to officially end their marriage. A "separation" means that you and your spouse are living apart but are still legally married. You don't always have to live in separate residences to be separated—you might choose (for financial or other reasons) to remain in the same house but living as roommates rather than a married couple. (More on "separate and apart" requirements and moving out below.)

A separation can be informal—meaning the spouses work out the terms of the separation without any court involvement—or legal—meaning that a court recognizes the separation and issues an order detailing the terms of the separation. Most separations fall into one of the following three categories.

Trial Separation and Separation Agreements

Trial separations, sometimes called "marriage separations," are voluntary and don't require that you file anything with a court. Most spouses choose to try a trial separation when they hope to resolve the problems they've been having and remain married. Legally, not much changes for the couple during a trial separation—all marital property laws still apply. For example, any debt or assets either of you acquire during the trial separation period are still considered marital property.

No matter what type of separation you choose, it's a good idea to work out the terms of your separation with your spouse. This includes writing a separation agreement about topics such as:

• the length of your separation
• how to handle bills
• whether you'll continue to share a bank account or credit cards
• who will stay in the family home, and
• child custody, support, and visitation (if applicable).

You don't have to enter into a separation agreement to be separated. However, it's worth taking the time to write out an agreement that both of you sign to avoid confusion and disagreement. And, if you ultimately decide to divorce, you can use the agreement as a starting point for drafting a marital settlement agreement.

When spouses determine that there's no hope of reconciling, their trial separation becomes a permanent separation.

Permanent Separation

In a "permanent separation," you and your spouse live apart and have no hope of reconciling. You don't have to involve a court to become permanently separated.

Depending on your state's law, a permanent separation might affect spouses' property rights. For example, in some states, once a couple permanently separates, each spouse becomes solely responsible for any debts they take on after the date of separation. Because a permanent separation can affect your property rights, you'll want to determine a firm start date for the separation.

Once you've determined that there's no hope of reconciling with your spouse and the separation is permanent, it's important that you don't go out together or spend the night together for old times' sake. Even a brief reconciliation can change your separation date and affect your and your spouse's rights to each other's income, debt, and property.

Legal Separation

"Legal separations" are formal separations recognized by the court. Not every state allows legal separations. In states that permit legal separations, the process is similar to getting a divorce: One spouse will file a petition for legal separation, and a judge will oversee division of marital property and debts, decide custody and support, and award alimony, if appropriate. If you and your spouse can work together to decide these issues, you might be able to submit a separation agreement for the judge to approve and incorporate into your separation order.

When a court grants a legal separation, neither spouse can remarry. In order to remarry, you'll have to officially end your marriage with a divorce. In many states, you can remain legally separated forever, but in some states, the court will place a deadline on the legal separation. If there's a deadline, you and your spouse will have to decide if you want to reconcile, remain separated, or divorce. Either spouse can file for divorce without permission or agreement from the other.

Some couples choose to remain legally separated indefinitely for reasons such as:

• religious beliefs
• a desire to keep the family together legally for the sake of children
• the need for one spouse to keep the health insurance benefits that you might lose in a divorce, or
• a simple dislike of divorce despite the desire to live separate lives.

An important note: If you plan to legally separate instead of divorce in order to keep insurance benefits, check your insurance plan before making any decisions. Some insurance companies treat legal separation the same as a divorce for purposes of terminating benefits.

Differences Between Separation and Divorce

The biggest difference between separation and divorce is that a separation leaves a marriage legally intact while a divorce terminates the marriage. Divorce is permanent, and a divorce order is extremely difficult to appeal.

Separations are easier to reverse. If you've done a trial separation or permanently separated from your spouse, you can simply get back together. If you're legally separated, you just need to file a motion (request) with the court asking the court to end the separation.

Other differences between separation and divorce include:

• Decision-making rights. A divorce terminates any rights you have to make decisions for your spouse. A separation doesn't end your marriage, leaving you still considered next-of-kin to your spouse and able to make medical or financial decisions on their behalf.
• Property rights. As mentioned above, in some states, when spouses permanently separate, they lose any claim on or responsibility for the income, debts, and property acquired by the other as of the date of separation.
• Rights to benefits. In some situations, you can keep your spouse's health care benefits if you are separated—but not if you're divorced. What happens to benefits depends on state law and the terms of the benefit—for example, a health insurance policy might include a clause dropping coverage of a spouse in the event of a legal separation. It's a good idea to carefully review the terms of any shared benefits before you permanently or legally separate.

Required Separation Before Divorce

Several states require married couples to live apart for a certain amount of time before they can divorce. In most states, the required separation period applies to only certain types of divorces. For example, many states require separation only for couples seeking divorce on a fault-based ground. Most states that allow only no-fault divorces don't have a required separation period. (You can read about "separate and apart" requirements, including as they relate to moving out.)

Pros and Cons of Separation Before Divorce

When you're certain that your marriage is over, and you know that you want to divorce, separating might still be a good idea. When you separate before divorce, you and your spouse have a chance to resolve some issues—and you can use any agreement you've reached to streamline your divorce. If you're able to agree on all the issues in your divorce, you might even be able to file an uncontested divorce, which can save you money, time, and effort.

If you file for divorce without an agreement in place, your divorce might take a while to complete. It can take months to resolve issues like custody, support, and property division even on a temporary basis.

Some contested divorces can take a year or more to get to trial. And the longer your divorce takes, the higher your legal bill will be if you've hired an attorney. Additionally, drawn-out contested divorces usually take a major emotional toll on everyone involved, including children.

Deciding to divorce right away doesn't mean you can't resolve your differences before a divorce trial, though. If you think that you might be able to negotiate an agreement with your spouse, divorce mediation might be a good idea. Divorce mediation is successful for a lot of couples, and it allows couples to resolve their divorce on their terms. In fact, many states require couples to participate in mediation before the court will set a trial date.

Separation FAQ

• Can you be legally separated forever?
• What's the point of legal separation?
• Do I have to pay alimony or child support when separated?
• How does legal separation protect you?
• Is it better financially to be single or married?

Can you be legally separated forever?

In most states, yes: You and your spouse may remain legally separated forever, as long as you agree. In some states, courts will put an end date on a legal separation. On or before this deadline, you and your spouse must decide whether to reconcile, ask the court to extend the legal separation, or file for divorce.

However, because legal separation doesn't dissolve a marriage, neither spouse can remarry in the future unless you have a final divorce decree. (Legal separation will end if either spouse files for divorce.)

What's the point of legal separation?

The point of a legal separation varies depending on the couple. For example, if the couple practices a religion that prohibits divorce, a legal separation might be the only way for the spouses to remain in the religion while living independently.

In many cases, a legal separation allows couples to see what it would be like if they filed for divorce—for instance, they'll experience co-parenting under a custody order and what it means to live on one income or spousal support.

Do I have to pay alimony or child support while I'm separated?

It depends. If you're living in the same household while you're in a trial or permanent separation, the court might not award child or spousal support. However, when you file for a legal separation, the court will calculate child support and alimony, if appropriate. Once a court has issued a support order as part of a legal separation, you must follow its terms or you could face legal consequences.

How does legal separation protect you?

Legal separation permits each spouse to move on, independently, from their marriage, without going through the formal divorce process. Legally separated couples can often continue providing each other health care, Social Security benefits, and tax benefits. (Be sure to look at the terms of any benefits you share and determine if they're affected by a legal separation, as some types of benefits might end upon a legal separation).

A court order in a legal separation carries the same weight as custody, property, and support orders in a divorce decree. This means that both spouses are bound by the separation order, and both can enforce the orders in court.

Is it better financially to be single or married?

The answer to this question depends on your individual and family circumstances. Married couples typically share assets and debts unless they sign an agreement that says otherwise. Often, married couples find that sharing assets and debts puts them in a stronger financial position—but not always. In many situations, married couples also enjoy more tax benefits than singles.

Ultimately, there's no one-size-fits-all answer. To determine whether your financial situation is better if you're single or divorced, you'll want to take a close look at your finances, and consider consulting with an accountant, financial advisor, or other qualified expert who can assess your options.