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Legal Separation Vs. Divorce: Know the Difference

Legal Separation Vs. Divorce
Most people get confused when differentiating a separated couple from a divorced one. Well, they may be two similar things, but when it comes to the smaller details, they are slightly different. Here's an explanation on legal separation vs. divorce.
Arjun Kulkarni
Last Updated: Mar 21, 2018
In its simplest terms, the difference between a legal separation and a divorce is that a divorce ends a marriage, while legal separation does not. A legal separation allows some cool-off time for a troubled couple and gives them a chance to reconcile their relationship. And if things work out well between the couple, the legal separation can be ended and the couple can continue their marriage. A divorce on the other hand puts a permanent full-stop to the marriage.
There are many ways to get out of a troubled marriage. You may either live separately from your spouse or approach the judiciary for a decree of legal separation, annulment, or divorce. Before choosing one, you have to understand the difference between these legal concepts and their pros and cons. Choose the one that is best suited for you. The laws relating to marriage, divorce and legal separation may vary from one state to another. So it is important to consult an attorney and understand the procedure and its consequences.
Separation, Legal Separation, and Divorce
The law gives you several options to reconcile your relationship. While a divorce is pretty straightforward and most people know about the legal repercussions that follow, let me first explain the slightly softer alternatives - separation and legal separation. In fact, there is only a very thin line that separates these legal concepts.
angry couple
A couple may think that they need a divorce, when actually what they need is some time out. The pressure between two married people can sometimes be eased by just staying away from each other and working out a strategy for the future. However, there is no guarantee that the plan will work. Here, the status of 'living separately' does not have legal recognition. The spouses are not legally bound to follow the strategy they have prepared and this may end up in unnecessary litigation.
Separation Agreement
separation agreement
To avoid legal complications, the spouses can opt for a separation agreement, which clearly states the terms and conditions of separation. The agreement has to be notarized and signed by both parties. Such an agreement is considered as a valid contract that is legal and binding. If any of the parties to the contract fails to comply with the terms or violates them, the other one can approach the concerned court for enforcement of the same. This agreement can be filed along with the petition for divorce, so that the terms and conditions can be incorporated (partly or in whole) in the divorce agreement.
Legal Separation or Limited Divorce
divorce law
The court will issue a separation order that will change your marital status to 'living separate'. However, the marriage remains valid and remarriage is not allowed. The order may also have provisions with regard to child custody, division of assets and debts, financial support to the spouse and/or child, etc. After a certain point of time, the spouses may think about reconciliation or proceed with divorce formalities.
Divorce (or Absolute Divorce)
divorce petition
Once divorce is granted, it means termination of the marriage. Issues like division of assets and debts, alimony, child custody, etc., are taken into consideration. In most states, there is a compulsory waiting period of six months to one year, before the spouses can remarry. If the spouses do not agree to the terms, the trial decision will be taken by the judge. Some states require the spouses to undergo a legal separation for a stipulated period, before they apply for divorce.
Legal Separation or Divorce - Which One to Choose?
As mentioned above, legal separation and divorce are almost similar in the duration of the procedure as well as the costs incurred. In some states, it is mandatory to undergo the procedure of legal separation, before filing for divorce. So, when you have to choose between any of the two options, you have to weigh the pros and cons of both legal separation and divorce.
If You Want to Terminate the Marriage and/or Remarry
Divorce is the better choice, as there is no point in obtaining a legal separation (unless it is mandatory), which does not terminate the marriage and the parties are not allowed to remarry.
If There are Chances of Reconciliation
In that case, a divorce would prove futile. Even a legal separation may not be a good idea to pursue. You have to move the court to vacate the judgment. So if separation is your attempt to save your marriage, live apart and give it a try. In such cases, it will be better to prepare a separation agreement.
If You Have Financial Constraints
Legal separation may prove beneficial in some cases.
  • The employer's health insurance plans may not cover the ex-spouse of the employee, in case of divorce. This may not be the case in legal separation, but make sure to check the terms and conditions beforehand.
  • Certain social security benefits are meant for those who remain married for at least ten years, before divorce. In that case, a legal separation may prolong the term of the marriage.
  • The ten-year marriage requirement is applicable for spouses of those serving in the military. In that case too, a legal separation may prove useful.
Religious and Moral Reasons
If your religious and/or moral beliefs are against divorce, then it is better to opt for legal separation that will allow you to retain the married status, without living together.
This is only a brief overview about the various aspects of legal separation and divorce. Before choosing any one of them, consult an attorney and learn more about the current provisions applicable for the concerned jurisdiction. The legal separation agreement must be drafted carefully, as it could be used as your divorce agreement.

Separation or divorce, either way it is quite an extreme step and leaves behind a trail of broken hearts. One need not always take such a harsh decision. Sometimes all you might need is some marriage counseling, mutual communication or a slight personality correction. Is that too much to give for the person you love?