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Legal Separation vs. Divorce – What is the Difference?

legal-separation-vs-divorceWe’ve all heard the horror stories about celebrity divorces where $50 million is on the line and some of the frightening statistics—about 50% of marriages split. For those reasons divorce law is one of the most lucrative fields for attorneys. However, in recent times an alternative long-term solution to an unhappy marriage is becoming more and more popular—that solution is legal separation. This post will help you understand the difference between divorce vs. legal separation and decide which one may be the right option for you.

What is Legal Separation?

Legal separation is an alternative to divorce that is often less stressful, less expensive, and more convenient. Legal separation is more than a temporary, unofficial separation that many unhappy couples try to determine if it is time to permanently split. Instead, legal separation is a court order, sometimes subject to a Separation Agreement, that outlines the rights and responsibilities of each spouse in relation to the family. It allows the couple to live separately from one another while continuing their legal marriage.

Legal Separation vs. Divorce

Included below are a couple important points regarding legal separation and divorce, followed by possible advantages and disadvantages of each.

Legal Separation Agreements

Separation Agreements are court orders that plan out legal separations. They outline the issues that are typically controversial in a divorce. These include: (1) child custody and support, (2) visitation schedules, (3) spousal support, (4) property and debt division, and (5) payment of legal fees.

Because legal separation agreements are typically enacted by court order, failing to follow their terms could result in liability. This also has the benefit of enforceability by offering the couple safety and predictability in the future, separated family relationship. Many family lawyers recommend not legally separating without such an agreement in place.

Laws Governing Divorce and Legal Separation

Divorce and separation are governed by state law, which varies substantially in each jurisdiction. For example, many Californian couples choose to separate before they divorce because of a 6-month “cooling off” period required in divorces. If a couple urgently wants nothing to do with one another, California law will still hold on to their divorce application for 6 months before it is finalized.

This is just one example of a state law that has big implications for the end of your marriage. Check with a local family law attorney to determine how your state handles divorce and legal separation.

Advantages of Legal Separation

Many couples choose a long-term separation rather than a formal divorce. Couples decide this for a number of reasons, many of which are financial. Here are some of the major ones.

Financial Benefits of Legal Separation

Both spouses retain many benefits, such as medical insurance, because they are still legally married. Further, after 10 years of marriage, spouses are typically awarded social security benefits that arise from their spouse’s history of employment. Also, if your spouse serves in the military, you could benefit from various military benefits.

Many spouses stay separated for tax reasons. Couples who file jointly, rather than separately or individually, experience better federal and state tax rates. For instance, the marginal tax rate of a single person is usually much higher than a couple who makes the same amount and files jointly.

Other Reasons For Legal Separation

Couples have other reasons they prefer not to divorce as well. Many couples refuse to formally divorce because it is forbidden by their religion, or they would be breaching important cultural practices. Especially if a spouse if actively engaged in their religious or cultural community, divorce might not be an option.

Some couples prefer a separation because they are still hoping that the relationship might be repaired. Because separation is not a dissolution of marriage, it is much easier to start the relationship back up as if nothing happened. If they had been fully divorced, then they would have to legally marry again.

Disadvantages of Legal Separation

Many couples still prefer to choose a divorce for certain reasons. Here are some of the major disadvantages of a legal separation compared to a divorce.

Financial Reasons

If you would be entitled to a percentage of your spouse’s assets upon divorce and you are concerned that your spouse is putting those assets at risk, then you should file for divorce rather than legal separation. Legal separation does not give spouses rights to each other’s assets in many states. If you drag your feet and your spouse loses all their money before you divorce then you will have lost that money as well.

You Can’t Marry Someone Else

Many divorcees want to marry someone else! Wounds heal over time and humans are social creatures. A legally separated person cannot go on to marry another person under U.S. law. This can get particularly hairy when one spouse is a foreign national who travels back to their home country and functionally “disappears.” If a person wants to remarry, some divorce law firms hire “specialists” who enter the relevant foreign country to find the missing spouse in order to finalize a divorce.

Conclusion

Now you know a little more about legal separation vs. divorce and some of the advantages and disadvantages of each.Whether you are getting a legal separation, which should include a Separation Agreement, or you are in need of a formal divorce, you should consider having an attorney guide you through the process.

Many attorneys specialize in family law and can provide you with the experience and know-how to make sure you are protected. Plus, with the different state laws on divorce and legal separation, you never know what you may be getting yourself into if you try figuring it out by yourself.

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