A court order that describes the living conditions and responsibilities of two partners living apart is called a legal separation.

Unlike divorce, in the case of legal separation, the couple stays married.

Despite their relative unpopularity, legal separations can benefit the feuding partners by providing room and space to resolve their differences.

There are various factors to account for when considering a legal separation as opposed to getting a divorce.

From a legal perspective, separation and divorce are two very different processes. The term separation describes the situation when you're living apart from your current wife/husband, but you remain married until the divorce is finalized in court (even if the court has issued a judgment of separation). However, a separation can affect the division of your finances and properties. Legally, there is only one type of separation – legal separation. However, in practice, there are three types of separation, and all of them can affect your standing in the eyes of the law.

Trial Separation

If taking a break from the relationship is all that you and your partner are after, you can simply move out until you've either settled your differences or file for divorce. From a legal perspective, you'll have the same responsibilities concerning ownership and property. Most of the time, the money earned during trial separation and acquired property are still viewed as marital property. However, rules may differ depending on the state.

If the partners are hoping to work through the differences, they should have a personal agreement about hot-button issues. For instance, you should work out the details regarding the living situation, sharing credit cards, treatment of shared bank account, division of expenses, etc. In the case of marriages that produced children, partners should also have a talk to agree on when and how each partner will spend time with children. If things worsen between the two partners, a trial separation can morph into a permanent one. More about that later.

Permanent Separation

When two spouses live apart and have no intention to get back together is called a permanent separation. Depending on your state's rules, permanent separation might affect property rights and the burden of responsibility for each spouse. For instance, if you're permanently separated, then you might not be held responsible for the financial decisions of your former partner.

If your spouse earns money or acquires property during the separation, you won't be eligible to receive any of it. It is hard to pin down the exact date when permanent separation begins, and determining this date is sometimes a cause for a lot of fights in the court.

Let's imagine a situation when one of the spouses left a family home to live with his/her friend for one month.

Suppose there was no communication in regards to divorce during that month, and the partners had not discussed divorce when they were together. In that case, it is very hard to determine the date for when permanent separation started. This might determine eligibility to your former partner's earnings or responsibility for the debts incurred during the period of separation.

If you are seeking a permanent separation, it is not a great idea to slip into old habits and spend the night with your former partner.

Even if it is extremely short, reconciliation might be seen as a reason to change the date of separation. You might become responsible for the financial decisions your former partner made prior to your short-term reconciliation.

If you're living apart and have arrangements in place to handle your marital property and financial responsibilities, you have the option to delay getting the divorce. Sometimes individuals choose not to get divorced to retain their family insurance. Other times divorces are delayed due to inertia.

Legal Separation

Some states will allow you to get a legal separation based on a submitted request in family court.

Becoming legally separated puts you somewhere between divorced and married, but you're not either.

One significant limitation is that you can't marry someone else. However, similarly to divorce, the court order related to legal separation will lay out the terms for division of marital property, family support payments, and other issues.

People may have different reasons for choosing legal separation over divorce. Their religious beliefs might inspire them, or to protect the children from legal divorce, to keep insurance benefits, or any other reason. Some of the people live happily as legally separated individuals. However, keep in mind that some health insurance providers might have a policy that views legal separation as an event that is tantamount to divorce. If they do have such a policy, one of the spouses might lose their insurance.

Legal Separation vs. Divorce: Differences

There are few important distinctions between a separation and a divorce. The biggest difference is that legal separation doesn't terminate your marriage, while divorce does. These are other key distinctions:

 

  • Health insurance and extra benefits: While legally separated, you're eligible to remain on your family health insurance plan or keep other family-related benefits that you would no longer be eligible for in the event of divorce.
  • Marriage: While legally separated, you're still considered legally married and can not remarry. Divorce officially ends your marriage and allows you to remarry.
  • Decision-making: Legally separated spouses are viewed as next of kin and have the rights to make medical or material decisions for each other; divorce strips you of these rights;
  • Financial liabilities: Legally separated partners are sometimes accountable for the debt taken on by their spouses. In case of divorce, once it is finalized, the former spouses aren't responsible for each other's finances.
  • Property rights: In case of legal separation, you're still entitled to your spouse's property in the event of their death; this is not the case for divorces.
  • Getting back together: It is impossible to reverse the effects of divorce; it is easier to do so when you're legally separated. The only solution to reconcile in case of a divorce is getting married again.

Legal Separation vs. Divorce: Similarities

During the proceedings for both legal separation and divorce, the court must rule on these issues:

  • Separation maintenance (a concept that applies to legal separation and is similar to child support and alimony. It is achieved by means of "motion pending litigation").
  • Child custody
  • Visitation rights
  • Division of marital property (legal separation as well as divorce property division is consistent with the couple's circumstances and its association to the property.

Reasons to consider a legal separation

Various personal and materialistic factors might encourage the couples to consider legal separation:

  • When you can't decide to end your marriage, you can opt for a softer option of legal separation, which will give you time and space to think things over. It will also protect your financial interests.
  • If you're opposed to a divorce due to religious reasons, legal separation might be a viable option.
  • One of the spouses might be able to retain health insurance that is tied to the other partner's job. Divorce would eliminate the possibility.
  • When legally separated, you and your partner can continue to file taxes as a couple, which might allow you to receive tax benefits.
  • You might also prefer to stay married if you need to accumulate certain years of marriage to receive military and other similar benefits related to your spouse's occupation. Legal separation might be a way to stay married on paper but lead separate lives until you've reached the threshold.

Reasons to choose a divorce

There are situations when divorce is the best outcome for everyone involved.

  • If there's nothing practical to be gained from staying married and the reconciliation is off the table, skipping the legal separation and getting a divorce might be a great option. Otherwise, you might have to pay double the legal fees for going through two procedures.
  • If you've met someone new whom you want to marry, you'll have to get a divorce because, during legal separation, you're still technically married.
  • If you want to remove your status as a next of kin for your partner, then you should get a divorce. In case of a divorce, you and your former spouse won't be able to make medical or financial decisions either.

Some states do not allow legal separation. In this case, getting a divorce is the only option to financially and practically separate yourself from your partner.

Living Separately and Impact on Property Division

Certain events might lead a couple to prefer living separately with no intention of getting back together. In some states, partners who want to live separately are obligated to file a no-fault divorce. The choice to live separately may affect the portioning of marital property.

The treatment of assets and obligations acquired during the legal separation will be handled differently depending on the couple's residence. When deciding on how to portion a marital property, some states consider the wishes of one of the partners to be absolved of marriage.

How To Prepare

Moving Out

Before moving out, double-check that your name does not remain on any rental lease. By doing so, you'll be making sure that you aren't held responsible for your spouse's failure to pay the rent. After moving out, make arrangements to receive your mail at the new address.

Separating Finances

It is recommended to save copies of all addresses, phone numbers, mortgage documents, and bank-related documents. Make sure that accounts that you don't want to be associated with are not registered in your name or reference your name in any way.

If your spouse doesn't comply with your request to remove your name from the bank accounts, have them frozen. As long as bank-related documents bear your name, you're still responsible for those bank accounts, even if they are frozen.

Handling Taxes and Benefits

Copy all income-tax-related files dating back six years, or even older files. Tax agencies do not take divorces and legal separations into account, so you have tax obligations, it will be your burden to pay them back.

If keeping your family health insurance is the only reason you're opting for legal separation instead of a divorce, thoroughly read the policy and comprehend it. Sometimes, insurance companies will warn you that your policy will become null and void in case of a divorce or a legal separation. Make sure you're covered even after getting legally separated.

It is recommended to hire an accountant to go over the retirement benefits and pensions that you might be entitled to. Sometimes you will have to qualify for the pensions, make sure you comply with the legal requirements.

Holding on to Special Belongings

Most of the time, a divorce judgment will consider the plea from both parties to let them keep their personal property after getting a divorce. In case you've moved out but left your personal belongings in your family home, mention those possessions in the separation agreement so that you're allowed to keep them in the event of divorce.

How Much Does Legal Separation Cost?

A legal separation might cost you very little or a lot of money, depending on the severity of the conflict. Simple, amicable separations can be taken care of with $1,000, but the cases where there's a lot of disagreement can cost over $100,000. Spouses usually disagree about custody of the children, family support payments, and partitioning of valuable marital assets. The total cost of legal separation will depend on these issues.

Geographic Location

Your location can also influence the total cost of wrapping up a legal separation. You're going to have to hire specialists like divorce attorneys, psychologists, accountants. Such professionals will charge more when they practice in a large city.

Rural areas tend to be cheaper.

Couples living in cities are also more likely to be affluent and have complicated legal problems, which further increase the total cost of legal separation.

Notwithstanding differences in other factors, cases that need to be handled by few distinct professionals will always cost more than cases that can be taken care of by lawyers alone. When a case is contested, you'll have to pay for the services of professionals to determine the value of your property, as well as psychologists and other professionals. If your court case involves a deposition testimony, you'll also have to pay court reporter's fees and secure the copies of the deposition transcript by paying a fee. You'll also have to pay the attorneys for handling the deposition as well.

Attorney Fees

Attorney fees are the most significant contributor to the total cost of divorce. Every divorce lawyer sets their own rate, depending on their location of operations, experience, and the extent of specialization. Lawyers who specialize in domestic relations and operate in big cities usually charge the most. You might find lawyers who work for a fixed fee, but most attorneys prefer to be paid hourly. Lawyers who handle family law matters can cost you anywhere from $125 per hour to $400 per hour, depending on the lawyer's experience.

Behavior and Goals of the Parties

The attitude and ultimate goals of two partners can have an enormous impact on the total cost of the proceeding. If one of the parties refuses to make the obligatory payments or doesn't fulfill the court orders in regards to child custody, the other partner will have no other choice but to go through with a contempt motion. Legal fees significantly increase when you're personally angered by the other side and can't communicate without using an attorney. All-or-nothing negotiation tactics can hurt both parties involved in proceedings. It is always more prudent to resolve any issues through negotiation. Individuals who, despite the divorce, remain respectful of each other and are willing to compromise tend to spend much less on a divorce.

Questions About Legal Separation vs. Divorce? An Attorney Can Help

To see where you stand in terms of marital property and debt division, check the laws of the state where you live. In most cases, the situation will be too complex to be simply understood alone. That's why each of the partners should seek legal advice. Getting the help of a local family law attorney can be the surest way to be protected throughout the divorce process.