It’s not simple to call it quits on a marriage. A legal separation, unlike a divorce (divorce vs separation), is a court decree that specifies the rights and responsibilities of the couple while they are still married but living apart. Both agreements financially separate the marriage and give legal monitoring for child custody, maintenance, and debt management. A divorce, on the other hand, completely ends a marriage.
If you and your husband or wife are having major issues, a divorce may seem like the only way to separate and preserve your finances. A legal separation, on the other hand, may provide the same level of protection as a divorce; and in some cases, may be preferable. When deciding which is best for you, there are personal and financial benefits to consider. So let’s look at both alternatives ( divorce vs separation).
But before then, let’s take a look at the different types of separation out there. There are three types of separation. However, only one (legal separation) affects your legal status in most places; although all three have the ability to impact your legal rights.
Divorce vs Separation: Types of Separation
The three types of separation include; Trial, Permanent and Legal Separation
#1. Trial Separation
If you and your husband need a break from each other, one option is to live apart while contemplating whether or not to divorce—this is known as a “trial separation.” During a trial separation, there aren’t many changes legally; but then all marital property laws still apply. For example, the money you earn and the things you buy during your trial separation will be treated as property obtained by a married person by the court. This usually means that you and your spouse own the property jointly (depending on your state’s property ownership laws).
So if you and your spouse have separated but intend to reconnect, it’s a good idea to establish an informal separation agreement. Your trial separation agreement might include the following clauses:
- Wether you’ll keep a joint bank account or use credit cards together
- How will you budget your expenses?
- Who will stay in the family home?
- How will you split expenses?
- If you have children, how and when will each of you spend time with them?
You might also be able to use this trial separation agreement as a starting point for setting up a marriage settlement agreement if you eventually decide to divorce.
Your trial separation becomes a permanent split if you and your spouse decide there’s no chance of reconciliation.
The law considers you permanently separated if you live away from your spouse with no intention of reconciling but are not divorced.
What Effects Permanent Separation Has on Your Rights
A permanent separation may alter property rights between spouses, depending on local laws. Assets and obligations obtained after a permanent separation, for example, may belong only to the spouse who acquires them in several states. Once you’ve been separated for a long time, each spouse is completely accountable for whatever debts they incur. Similarly, they will have no claim to the property or income gained by the other.
The Importance of the Date of Permanent Separation
Because the rights to each other’s property and debt responsibilities change dramatically as of the date of a permanent separation, spouses frequently argue about when their separation became permanent. If your husband left in a huff and slept on a friend’s couch for a month, but you didn’t talk divorce until the month had passed, the date the separation became permanent could be ambiguous. And if your husband received a large bonus at work during that month, you may be allowed to claim a portion of the bonus.
On the other hand, if you’ve moved out of the house and don’t expect a long-term reconciliation with your husband, don’t go out together or spend the night together only to relive the good old days. If you reconcile temporarily, you risk modifying the date of separation and being financially accountable for your spouse’s conduct during a time.
You don’t have to divorce right immediately if you’ve permanently separated from your spouse and reached basic arrangements regarding your joint assets and debts. You may choose to stay married for a variety of reasons, including the desire to avoid upsetting your children’s life or the want to keep your insurance coverage. Or, in some cases, keep the status quo, which is simply easier than going through with a divorce. On the other hand, you might opt to divorce as soon as the paperwork is completed, or when the required separation or waiting period in your state expires.
#3. Legal Separation
A legal separation is similar to postponing your marriage. Both spouses typically move to separate residences and begin living separate lives. However, a legal separation is more official than just separating. You’d have to get a judge to agree to your decision and draft a legal separation agreement. This is a contract that splits your property, establishes a plan for parenting your children, and ends your financial relationship with your spouse.
Divorce vs Separation: What Makes a Divorce Different?
Divorce is the legal term for the dissolution of a marriage. Aside from this key distinction, a divorce and a legal separation are very similar. You’d need to ask a court to approve this choice, as well as come up with an agreement that divides property and lays out a parenting plan for your kids. Due to the similarities between divorce and legal separation, they may cost the same and take the same amount of time to complete.
There are several reasons to consider a legal separation though.
- For both personal and financial reasons.
- If you’re not sure you want to dissolve your marriage, a legal separation might offer you time to think things through while also protecting your finances.
- Couples who are unable to divorce due to religious grounds.
- A legal separation may allow one spouse to continue to be covered by health insurance via the other spouse’s employer, but a divorce would eliminate this coverage.
- A Legal separation also allows you and your spouse to continue filing jointly for tax purposes, which may result in tax benefits.
- Finally, in order to get Social Security and military benefits from your spouse’s work, you must have been married for at least ten years. You might be able to use a legal separation to keep your marriage alive until this point.
Divorce is a viable option for a variety of reasons.
Cases, where a divorce may be the best option. include;
- If you don’t see any financial gain from a legal separation and are convinced you want to leave your marriage. If you don’t, you’ll waste time and money obtaining a legal separation only to have to repeat the process to obtain a divorce.
- You’ll also need a divorce if you wish to remarry because you can’t legally remarry if you have a previous marriage.
- Divorce may be preferable if you want no connection with your spouse; such as the power to make medical or financial decisions for one another, because you are no longer considered family.
- It’s also vital to note that legal separations are not permitted in all states. To financially separate from your spouse in these states, you’d require a divorce.
The distinctions between legal separation and divorce are significant. While we’ve included a few of them above, your financial advisor or lawyer can help you decide what’s best for you.
Separation vs Divorce: Other Differences
The most significant distinction between separation and divorce is that a separation keeps a marriage legal while a divorce ends it. Divorce is irreversible, and it is extremely difficult to overturn a divorce decree.
Separations are less difficult to undo. You can simply get back together if you’ve done a trial separation or are permanently separated from your spouse. If you’re legally separated, all you have to do is file a motion (request) with the court requesting for the separation to be ended.
Other distinctions between divorce and separation include:
The ability to make decisions — Any rights you have to make decisions for your spouse are lost when you divorce. A divorce does not end your marriage; you are still considered your spouse’s next-of-kin and can make medical and financial choices on their behalf.
Rights to one’s own property— As previously indicated, when spouses permanently separate, they forfeit any claim or responsibility for the income, obligations, and property obtained by the other as of the date of separation in various states.
Benefits entitlements— If you’re separated, you may be able to keep your spouse’s healthcare benefits—but not if you’re divorced. Benefits are determined by state law and the conditions of the benefit—for example, a health insurance policy may include a clause that excludes a spouse from coverage in the event of a legal separation. Before you permanently or legally divorce, it’s a good idea to look over the terms of any shared benefits.
Divorce vs Separation FAQs
Is it better to get separated or divorced?
Separation can help you deal with many aspects of the divorce process more calmly, such as determining child custody and splitting marital property. With no court fees or deadlines hanging over their heads, spouses may find it much easier to navigate these legal issues during a divorce.
Why would you legally separate instead of divorce?
People prefer legal separation over divorce for a variety of reasons, including religious convictions; for the sake of the children, a yearning to keep the family together legally; plus the requirement for one spouse to preserve health insurance benefits that might otherwise be lost in the event of a divorce.