How Is a Legal Separation Different Than a Divorce?

The difference between divorce and legal separation is divorce terminates the marriage legally, while a separation does not. Your marital status remains, regardless of if you are physically separated. Legal separation indicates that you and your partner are no longer living together but have come to a written agreement stating the terms of the separation through a document called a separation agreement. 

The separation agreement assigns a division of property and debt, child support and custody, insurance, and whatever else you and your spouse see fit. The couple will negotiate these terms, and if either spouse denies any of them,  the family division court can examine the case further to settle the dispute. However, a court is not required to create the separation agreement. 

A reversible legal separation allows couples to work through the relationship before ending a marriage. The following post will help illustrate what a legal separation entails and whether it is a viable option for you and your spouse. 

How is a Legal Separation Different Than a Divorce?

Unlike a divorce, legal separation does not end your marriage. If you receive a legal separation, you are separated civilly but remain responsible for your joint status. In your agreement, you and your spouse will set the terms and conditions of your separation. 

The following section explains how legal separation often affects your day-to-day life, from child care to health insurance. 

Insurance

If you get a divorce, your insurance coverage and expenses may be affected, but if you file for a legal separation, they should remain the same. In some (but not all) cases, health insurance benefit conditions are preferable if you get a legal separation. Legal separation often (but not always) requires your spouse to uphold your existing insurance coverage. It's important to notify your insurer that they should maintain your policy and that your provider must inform you of any modifications or cancellations to your plan to ensure your insurance coverage remains intact.

Taxes

If you are legally separated, the IRS requires you to file as married filed jointly or married filed separately because of your marital status. Generally, filing as married jointly ensures more entitlements than filing separately on your taxes because certain deductions or entitlements are unavailable to couples filing separate tax returns. Please click here to view the filing status most applicable to your situation. 

Legal and medical decisions

If you and your spouse are legally separated, the spouse may still be able to make medical decisions during the separation. However, a spouse has no special right to medical decisions, and family members may challenge a spouse’s choices and act in the interest of the incapacitated party. 

In the interest of the couple’s children, the parents or court can decide who is responsible for making medical decisions on behalf of a child. If the parents cannot agree, then the courts will determine who will administer medical supervision of the child. 

Debts and liabilities

Legal separation protects you from your spouse’s debts the day you file. A separation agreement can make provisions for allocating partners with existing debt dependent on their financial status. However, you are not obligated to your spouse’s accruing debts after your separation. 

Agreements will identify the total value of all the couple's marital property (sometimes known as the community estate) and their debts. The agreement will distribute assets and divide debts so that each spouse's share equals the total percentage.

Property

Though some states are community property states (in which all property and income accumulated during the marriage as shared property), most states are equitable distribution states. Equitable distribution awards each individual a percentage of the total value of the property (i.e., personal property, assets, debts). In some cases, states may allow the couple to decide which property distribution model to use. Please click here to find out your state’s division of property laws. 

Legal separation agreements help to divide important property assets such as the family home, furniture, and vehicles.  

Marital status

Though you and your spouse may live separately, you are still legally married. However, many couples remain in the house if it suits them financially (or for other reasons), but rather as roommates than a spouse. Regardless, in the eyes of the state, you are still married. 

Separation Agreements

A separation agreement is a written document between you and your spouse (often under the supervision of a family court or lawyer, but not required) that allows you to live separate lives. Separation agreements are essential during separation because they can mediate peace between both parties.

The agreement outlines the rights and obligations of each spouse for the duration of the separation. Be sure that your contract follows federal, state, and local laws. Once the agreement has been signed and notarized, you must file it with the County Clerk.  

If you decide to divorce later, the terms of your separation agreement can also act as the terms of your divorce. Some couples draft a separation agreement to secure what assets are essential to them but still want to remain legally married. Creating a separation agreement ensures that both parties' interests are protected.

Length of separation and living arrangements

The parties will decide if the separation is temporary or permanent. They will also indicate whether or not they will live together or apart. 

Post-separation support

In some cases, one spouse has made sacrifices that have prevented them from providing financially for the family. Spousal support is an agreed-upon amount mediated between the couple or courts,  typically in monthly payments, in which the more financially-able spouse pays. Spousal support may not cover the expenses of a child. 

Child support

The agreement should establish the terms of custody, financial support, and visitation rights of the shared children. Parents can write a custody agreement and submit it to the family courts or a lawyer for revision and approval. Child support may not cover the expenses of the spouse.

Listing of all assets and debts

Debts, assets, and loans are the responsibility of married couples, even if accumulated by one partner during the marriage. The document should detail any assets or debts shared between spouses, and the couple or a court will decide how to allocate these items.

Reasons Couples Decide to Legally Separate

Couples choose to separate from each other for a variety of reasons. If spouses decide to continue the marriage, they can reverse the legal separation, and there will be no need to get remarried. If the couple feels it is necessary after the duration of their separation, then they will proceed to obtain a divorce. 

The following list outlines the most common reasons couples choose to separate legally, though every case is unique.

Financial benefits

Divorce typically results in losing access to the financial benefits of marriage, such as filing your taxes jointly, social security, or health care coverage. With a legal separation, both parties can continue their benefits if desired. 

Religious beliefs

A legal separation may be preferable to divorce if you or your spouse practice religious beliefs that do not permit you to divorce. If this is the case, legal separation allows you to lead separate lives and will uphold your marriage status. 

Reassessing the marriage

Many couples opt for a legal separation if they are unsure about receiving a divorce. Sometimes spouses use their time of separation to decide if they want to continue their marital relationship. Getting back together after a legal separation is more convenient than if the couple were divorced and had to remarry. 

Separating property

A legal separation is a viable option if you’d like to stay married but maintain the status of your individual property. You and your partner will allocate existing property after a legal separation. Property accumulated after a legal separation remains separate from your spouse, just as in divorce. 

Property protected by a legal separation agreement includes (but is not limited to) property owned before marriage, received as a gift (either from your spouse or not), or acquired from a will or inheritance. 

Protecting yourself against debts or liabilities

If you are to separate, your spouse’s debts and legal obligations legally remain liable to you. However, a separation agreement allows you to decide what party is responsible for existing debts or liabilities (meaning any legal predicaments your spouse may have). It also protects you from any new payment obligations from your spouse after filing. 

Do I Need a Divorce Lawyer for a Legal Separation?

Legal separation usually does not require an attorney to represent you. However, speaking to counsel protects your interests and ensures that your partner upholds their end of the agreement. It is advisable to have a lawyer review your separation agreement before signing it. Once you and your spouse have signed the agreement, it is binding. 

For any questions regarding counsel, please contact one of Expertise’s divorce and family lawyers listed in the directory.