What is the Legal Difference Between Separation and Divorce?
Written by AskTheLawyers.com™ on behalf of Samuel E. Bassett with Minton, Bassett, Flores and Carsey.
While separation and divorce are closely related, the differences between the two are significant, and one does not necessarily include the other. For example, a couple may choose a legal separation over divorce while they work on the relationship and determine what step to take next.
Similarly, a couple may choose to file for divorce without enduring any significant period of separation prior to the filing, although this is not as common. Both in legal separation and divorce, the spouses typically live apart, do not share finances, and share custody of children and even pets. In both scenarios, there are strict rules that must be followed, including paying alimony or spousal support on time, child support, and abiding by any court orders assigned to the family.
In a separation, the couple is still married but otherwise is similar in appearance to divorce.
An informal separation is one that is not filed with the court; this is common for couples experiencing marital problems, choosing to live apart until they decide how to move forward. However, for those who expect the separation to last for any significant period of time, it’s wise to declare the separation legally if this is something your state offers. A legally separated couple is still married in the eyes of the law; this means that both members must continue to mark themselves as “married” on any official paperwork and cannot remarry unless and until a divorce has been finalized. In fact, any children born during a legal separation are legally the children of the husband as well as the wife unless proven otherwise.
However, a legally separated couple is bound by many of the same orders as divorced spouses, including those regarding finances and child custody. For spouses moving from a legal separation to a divorce, often the rules established during the separation can carry on into the divorce decree without a need for strenuous renegotiating. A legal separation is reversible, whereas a divorce is not. A divorced couple reconciling would have to remarry, whereas spouses in a legal separation only need to file a motion to dismiss the separation.
In a divorce, the couple is no longer married and subject to the divorce decree.
A divorced couple is no longer legally married; this means that either party is free to marry as they see fit, and that the rights specific to married spouses no longer apply. However, in legal separation as well as divorce, matters such as asset allocation, spousal support or maintenance, child support, and child custody all come into play. Whatever divorce orders are approved by the judge must be followed or else one or both spouses may be opened up to penalties. However, the rules regarding these and other decisions typically made during divorce negotiations and proceedings can vary depending on the state.
Some states require a legally married couple to undergo a period of trial separation before being allowed to file for divorce; depending on the state, there may or may not be the option to declare a formal separation by submitting a separation agreement to the court. However, being able to prove how long the couple has been separated and by what means may be sufficient to prove that a trial or long-term separation has already occurred.
Divorcing also typically eliminates shared benefits that would continue to exist in a legal separation, such as insurance benefits from a spouse’s plan; however, these and other matters can be discussed and negotiated before a divorce is finalized. Divorce is not reversible, unlike separation, and can be timely, expensive, and stressful. This is another reason why many states recommend attempting a trial separation first if there is a possibility that the marriage can be safely repaired.
To learn more about the difference between separation and divorce, reach out to a family law attorney in your state.