Separation Versus Divorce

Learn about the differences between divorce and separation.

What Is Separation?

When you use the term "separation" concerning marriage, it can mean many different things. Separation can mean that you and your spouse agree your marriage is in trouble, but isn't over, so you're taking some time to reevaluate the relationship. Or, you and your spouse have decided that you no longer want to be married, and you are either living separate and apart or (for financial or other reasons), you are still living in the same house, but merely as roommates. Finally, a legal separation is available in some states, and while you are still technically married, it's similar to a divorce in that a judge can divide your property, determine child custody and support, and set alimony, if appropriate.

Trial Separation

If you and your spouse are having marital troubles, but you're not ready to end your relationship, you can agree to a trial separation. Trial separations are voluntary and don't require court filings, but if the trial separation is going to go on for more than a month or so, spouses should agree on the terms of the separation, including the timeframe, how to handle finances (such as, mortgage or rent, utility bills, and credit cards), child custody and support, and any other important items.

Permanent Separation

If you and your spouse decide to end your relationship without asking the court for a divorce, you're permanently separated. Spouses can decide to separate on their own—typically by living apart and separating their finances. It's important to understand that in some states, living separate and apart for a period of time may change the way the court looks at each spouse's property rights, should they divorce later. Typically, once you agree to separate, neither spouse is responsible for the other's debts nor can they claim a right to the other's income, but in the end, this depends on your state's laws.

A permanent separation usually entails the spouses entering into a Property Settlement Agreement or Separation Agreement. This method owes its popularity to the fact that you don't need court involvement to attain your goals. It's a voluntary process, and most couples can resolve their differences through negotiation, often with the aid of attorneys or a qualified family law mediator.

Once the spouses resolve all of their issues—such as property, child-related matters, and alimony—they should review and sign a final agreement. If one of the spouses violates any of the agreement's terms, the other spouse can go to family court and ask a judge to enforce the agreement. A formal separation agreement doesn't end the marriage, so neither spouse can remarry.

Legal Separation

Some states allow spouses to apply directly to the court for a legal separation. You would first file a written petition (sometimes called a complaint) for separation with your local court. The process then moves forward much the same as a divorce. The couples will have to agree (or ask a judge to decide) on all marriage-related issues, like property division, alimony, and child custody and suppose. Once you have resolved everything you will enter into a formal settlement agreement, which will be provided to the court. If everything looks appropriate, the court will issue orders and declare the couple legally separated.

Note that you can separate, either permanently or temporarily, without a court order or a written agreement. However, oral agreements are typically difficult to prove and enforce.

Differences Between Separation and Divorce

The biggest difference between divorce and legal separation is that a divorce terminates a marriage, while a separation doesn't. (For purposes of this article, the term "divorce" refers to an absolute divorce, sometimes called "a divorce from the bonds of matrimony.")

That said, there are other distinctions between the two, but whether you choose to file for divorce or opt for a legal separation immediately, the issues you'll address will normally be the same. They include:

Separation Before Divorce

Several states require that a couple complete a period of separation before filing for divorce.

  • Arizona: For couples ending a covenant marriage, the court requires you to separate for at least one year from the time the court orders a legal separation. If there is no separation order, you must live separate and apart for at least two years. (Ariz. Rev. Stat. Ann. § 25-903 (5-6).) There is no separation requirement if you do not have a covenant marriage. (Ariz. Rev. Stat. Ann. § 25-312.)
  • Arkansas: Couples filing a no-fault divorce must live separate and apart from each other for at least 18 months before filing for divorce. (Ark. Code Ann. § 9-12-301.)
  • Delaware: The law requires you and your spouse to separate for at least 6 months before filing for divorce. (Del. Code Ann. tit. 13, § 1507 (e).)
  • District of Columbia: If you and your spouse agree to separate, the court requires you to live separate and apart for at least 6 months before filing for divorce. If your spouse moved out and you didn't agree to it, the court will require you to prove you've lived separately for at least one year before accepting your divorce petition. (D.C. Code Ann. § 16-904 (a).)
  • Illinois: Spouses must live separate and apart for at least 6 months before the court can accept the divorce case. (750 Ill. Comp. Stat. § 5/401 (a-5).)
  • Kentucky: You must live apart from your spouse for at least 60 days before the court will grant a divorce. (Ky. Rev. Stat. Ann. § 403.170 (1).)
  • Louisiana: If you have a covenant marriage, you must live separate and apart for at least 2 years, unless the court grants a legal separation first. If you are legally separated, you must wait to divorce at least 1 year from the date of the legal separation (18 months if you have minor children.) (La. Civ. Code Ann. Art. 103.) For non-covenant marriages, the law requires spouses to live separate and apart for at least 180 days (without minor children) or 365 days (with minor children.) (La. Civ. Code Ann. Art. 103.1.)
  • Maine: You and your spouse must live apart for at least 60 continuous days before filing for divorce. (Me. Rev. Stat. Ann. tit. 19-A, § 851 (1-A).)
  • Maryland: The court may grant a divorce if you and your spouse live separate and apart for at least 12 months without interruption before filing for divorce. (Md. Code Ann. [Fam. Law], § 7-103 (a)(4).) The law waives the separation period if you mutually agree to the divorce, all the terms of the divorce, and put it in writing. (Md. Code Ann. [Fam. Law], § 7-103 (a)(8).)
  • Montana: Unless you can prove to the court that "serious marital discord" exists in your marriage, you'll need to live separate and apart for at least 180 days before filing for divorce. (Mont. Code Ann. § 40-4-104 (b).)
  • Nevada: The law requires spouses to live separate and apart for at least one year without cohabitation before the court can grant a divorce. However, if you file a no-fault divorce alleging "incompatibility," the law doesn't require a separation period. (Nev. Rev. Stat. Ann. § 125.010.)
  • North Carolina: You must live separate and apart for at least one year before the court can grant a divorce. (N.C. Gen. Stat. § 50-6.)
  • South Carolina: The state requires spouses to separate for a minimum of one year before filing for divorce. (S.C. Code Ann. § 20-3-10 (5).)
  • Vermont: Spouses must live separate and apart for at least 6 consecutive months before filing for divorce. (Vt. Stat. Ann. tit. 15, §551.)
  • Virginia: If you have minor children with your spouse, you must prove to the court that the spouses lived separate and apart for at least one year. Couples without children can reduce the separation period to 6 months if both agree to the divorce and submit a signed separation agreement to the court. (Va. Code Ann. § 20-91 (A)(9)(a).)

Pros and Cons of Divorce and Separation

If you want to end your marriage, and you don't believe you'll be able to negotiate a settlement with your spouse on your own, then filing for divorce is the obvious choice. That's not to say that you can't resolve your differences during the divorce process. In fact, judges actively encourage couples to settle their cases outside of court, usually by having you participate in settlement panels and engaging in mediation, if necessary.

The downside to filing for divorce without having an agreement in place is that things tend to move at a snail's pace. It's not unusual for a contested divorce to take a year or more to conclude. And the longer the case takes, the more you'll probably pay in legal fees. Additionally, a contested divorce almost always takes a higher emotional toll on all involved, including children.

With that in mind, it would appear that attempting to obtain a negotiated settlement agreement before heading to court is a good option. And that's true in most cases. If you have an agreement and ultimately decide you want to dissolve the marriage formally, you can file a divorce petition with the court. You'll present the separation agreement to the judge, who can make it a part of the final judgment of divorce.

It's important to note that there may also be financial consequences to your divorce or separation choice. For example, if a couple chooses to separate but not get divorced for at least ten years, one spouse may then be entitled to collect Social Security benefits based on the other spouse's work record. Additionally, your choice of which avenue to pursue can affect important issues, such as the ability to remain on a spouse's health plan, filing a joint tax return, and what property should be divided (as well as the valuation of that property).

The choice between divorce and separation can be complicated. Keep in mind that divorce laws may differ from state to state and are always subject to change. So it's important that you consult with an experienced divorce lawyer to make an informed decision as to how you want to proceed.

FAQS on Divorce

Can you be legally separated forever?

Technically, yes. If you and your spouse prefer to remain legally separated forever, as long as you agree, you can. However, because legal separation does not dissolve a marriage, neither spouse can remarry in the future until filing for a formal divorce. 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 may be the only way for the spouses to remain in the religion while also moving on independently from each other.

In many cases, a legal separation allows couples to see what it would be like if they filed for divorce—for instance, learning how to co-parent using a custody order while separated or transitioning from two incomes to one, with the help of any court support orders.

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 may not award child or spousal support. However, if you've asked for a legal separation, the court will calculate child support and alimony, if appropriate.

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 may continue providing each other health care, Social Security benefits, and tax benefits. If you have questions about how a legal separation will impact you, contact an experienced attorney in your area.

Is it better financially to be single or married?

The answer to this question depends on the individual and the couple. Married couples will share assets and debts unless they sign an agreement that says otherwise. Married couples may also enjoy more tax benefits than singles. Still, that factor depends significantly on the financial status of each spouse or individual.

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