Divorce

Legal Separation vs. Divorce: Which Should You Choose?

There are many reasons you might opt to not end your legal marital status.

Posted July 5, 2022 | Reviewed by Abigail Fagan

Key points

The key difference between a legal separation and a divorce is that people who are legally separated are still married. They cannot remarry.
People may consider a legal separation because of ambivalence, religious views, and tax benefits, among other reasons.
People may consider divorce because they’re positive they want to dissolve their marriage or they want to remarry, among other reasons.

Tim (not his real name) and his live-in girlfriend come to meet me. Jamie wants to get married, “We’ve been living together for five years and it’s time!” she says. “I have been more than patient, but I’m not going to wait forever.”

The problem is that Tim is already married.

That is, he is still married. He and his wife legally separated more than 10 years ago. They haven’t lived together in 10 years and rarely communicate with each other now that their children are launched. However, his wife is still the person who will inherit Tim’s business if he predeceases her. She will still make important end-of-life decisions for him if he becomes terminally ill.

What is the difference between legal separation and divorce?

Not all states allow “legal separation,” so check with your attorney in your jurisdiction.

The most important difference between a legal separation and a divorce is that when you are legally separated from your spouse, you are still married. You cannot remarry because that would be bigamy.

A legal separation is a formal agreement and an official court order that is filed with the court. As in a divorce, this document outlines your agreements regarding the division of your finances and property, and how you will share parenting time.

Most of the same laws that apply to marital settlement agreements apply to legal separation agreements. The only difference is that you are not asking a judge to terminate your marital status.

In other words, you may be living separately, receiving financial support, and sharing custody, but you are not legally single.

The legal costs (mediation, information gathering, negotiations, documentation, etc.) of creating a legal separation aren’t very different from the costs of divorce.

Why consider a legal separation?

You aren’t sure you want to end the relationship. You think perhaps one day you might reconcile. Perhaps you want time to work on your relationship while living apart, or perhaps you want more time to make your decision. The legal separation gives you the same parenting and financial protections as a divorce.
Your religion forbids divorce.
Your personal views don’t allow for divorce.
For some, the stigma of divorce is unacceptable. Or other family members can’t accept your divorce.
There may be tax benefits to continuing to file joint tax returns. You should consult with your tax preparer to learn whether this is the case for you.
Other benefits, such as military and certain Social Security benefits, may require that you be married for at least 10 years. If this is the case in your area, you might want to stay legally married, but with the protection of a legal separation.
In some areas, you may still be able to benefit from health insurance coverage through your spouse’s job as long as you are legally married.

Note that a trial separation is different as no formal legal action is involved and no court orders are in place.

Why consider a divorce?

You are 100% certain that you want to dissolve your marriage.
You want to completely sever the relationship with your spouse so that you can “move on.”
You want to be able to remarry.
In a legal separation, spouses are still considered “next of kin,” meaning that they can make medical or financial decisions for their spouse. When you divorce, this is no longer the case.
Since the costs to file a legal separation are comparable to filing a divorce, you don’t want to spend the additional money for the separation paperwork.

Jamie feels that Tim’s reluctance to divorce his wife demonstrates his lack of commitment to her. Despite his pledge of commitment to her, she believes he uses his marriage as a way to avoid the long-term commitment to her.

Tim feels a loyalty to his wife, the mother of his children, although he is happy to not be with her anymore. “My kids would be upset if I divorce her now,” he says. “We are on good enough terms now, and this would create a major upset,” he continues.

Jamie considers this. “I get that. But I am not okay with being the other woman!”

Tim and Jamie both have decisions to think about. We spend a few more months discussing this and eventually agree to take a break when it seems that they are at an impasse.

Six months later, Tim and Jamie return to my office. Tim has proposed to Jamie, who shows me a lovely ring on her finger. Tim has filed the paperwork to complete his divorce which is proceeding amicably as they work with a mediator. He and his soon-to-be-ex have spoken with their children, who as it turns out, aren’t very surprised by the divorce.

Together he and Jamie have planned a small wedding in their garden for the fall.