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 immediately file for divorce, or opt for a legal separation, the issues you’ll address will normally be the same. They include:
Before delving into the relative benefits and drawbacks of divorce and legal separation, you need to understand that there are different types of 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) 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. Once all of these matters have been resolved, the court will issue orders and declare the couple legally separated.
The more common form of separation is created when spouses decide to separate on their own—typically by living apart and separating their finances. They generally enter 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 are able to resolve their differences through negotiation, often with the aid of attorneys and/or a qualified family law mediator.
Once the spouses are able to resolve all of their issues—such as property, child-related matters, and alimony—the agreements are then reduced to writing. 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 (which is a legally binding contract). As with a court-ordered separation, a separation agreement doesn't formally end the marriage.
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.
If you want to end your marriage, and you don’t believe you’ll be able to negotiate a settlement with your spouse, 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 formally dissolve the marriage, 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 choice of divorce or separation. 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 based on the other spouse’s benefits. Additionally, your choice of which avenue to pursue can impact issues like 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. And 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 local divorce lawyer, to be able to make an informed decision as to how you want to proceed.