Comparing Divorce vs. Legal Separation

People often ask what the difference is between legal separation and divorce.  Sometimes they will even ask, “Should I file for divorce or legal separation?”  This is clearly a very personal choice and not a decision someone else can make for you.  With that said, here is what you need to know:

If you are legally separated you are still married.

The main difference between divorce and legal separation is that you are still technically married if you are legally separated.  This means, amongst other things, that you cannot get married to someone else while you are legally separated.  Other than that, legal separation looks very similar to divorce.  In fact, you can make all of the same provisions in a legal separation that you can in a divorce.  For example, you can create a parenting plan, divide pensions, award the home to someone and establish spousal support.  Basically, anything you can do in a divorce you can do in a legal separation.

It is important to understand that the terms of your legal separation will continue to apply if you get divorced unless you both agree to change the terms.  In other words, it is very important that you are comfortable with the terms of the separation now because you probably will not be able to change them later on.

Why get legally separated?

Health Insurance.  The most common reason people get legally separated is because they want to proceed with divorce but they need to be able to maintain health insurance.  Important: Check with your company to make sure that you can cover a legally separated spouse under your health insurance.  Some companies do not allow you to you maintain health insurance for a legally separated spouse.  If you are considering legal separation for health insurance reasons, check with your company first to make sure you are able to maintain coverage.

Religious Reasons.  If you are legally separated you are still married.  Some people find legal separation preferable to divorce based on their faith.

Trial Separation.  Sometimes people will enter into a legal separation as a true trial separation, i.e., they want to see if the marriage can work but want to make sure there are agreements in place about the separation.  This is not a very cost effective way of trying out a separation.  If you really want to try to make your marriage work, you can save yourself a lot in legal fees by separating households and actually trying it out.  Further, the formality of a legal separation combined with working with divorce attorneys may actually make it more likely that your trial separation leads to divorce.

Liability.  In certain situations people are concerned about liability issues related to their spouse.  For example, they may be concerned that their spouse may injure someone in a car wreck and they themselves will be liable.  A legal separation may insulate you from spousal liability to some degree, but as long as you remain married you run the risk of being liable for damage or injury caused by your spouse.

Converting legal separation to divorce.

It is fairly simple and straightforward to convert a legal separation into a divorce.  If you have been separated for less than two years you can simply file a motion asking the court to convert the separation to a divorce.  If one person objects to converting it to a divorce, then a hearing will be set and the divorce will be granted.  If you have been separated for more than two years, it is still easy enough to convert a separation to a divorce but it does require some additional paperwork.  Mediation tends to be a very efficient way to convert a legal separation into a divorce.