What is the Difference Between Legal Separation and Divorce?

Legal separation and divorce are often confused, as they require many of the same elements to take effect. It is important to understand that, in most regions, legal separation and divorce are very different in the eyes of the law, however similar they may feel on an emotional level. Understanding the basic differences between legal separation and divorce can help couples decide on what action is best for a troubled marriage.

A legal separation is an order that temporarily suspends a marriage, while allowing spouses to retain some of the rights granted through marriage. Typically, this allows couples to continue sharing health benefits and reach agreements on custody sharing, spousal support, and other divisions of rights and responsibilities. In some regions, people filing for a legal separation do not need to meet the same residency requirements as those filing for divorce.

The difference between a separation and a legally filed separation is that legal proceedings require fair settlements and agreements about responsibilities to be made that are legally binding. If a spouse simply moves out, he or she is under no specific agreement that covers paying bills, rent, taking care of children, or using or selling assets. A legal separation forces a couple to reach an equitable and enforceable agreement about these issues during the period of separation. If a separated couple decides to get divorced, separation settlements are frequently turned into the terms of a divorce decree.

Legal separation and divorce have more similarities than differences, in many cases. The major difference is that legal separation suspends a marriage, while divorce is a full dissolution of a marriage. Those who are legally separated cannot remarry, while those who are divorced can.

There are many reasons that some couples choose to become legally separated rather than divorced. The couple may hope to reconcile at a later date, but need clear agreements about divisions of responsibilities. Some couples may belong to religions that frown upon or forbid divorce. Others may choose to stay technically married for a period of time in order to receive regional benefits that may kick in after a certain marriage milestone; certain Social Security benefits, for instance, are only available to those who have been married for ten years.

In some cases, legal separation and divorce are linked because separation is used as a stepping stone to divorce. Couples may want to begin living separately immediately, but need some time to divide property and duties. Some may want a “cooling off” period of separation to ensure that a divorce is the best plan. Once agreements are sorted out and seem to be working equitably, couples who intend to go separate ways can petition to have the separation made permanent through a divorce decree.