When a couple get married, neither spouse anticipates that the union will not last. However, a couple may decide they don't want to be married anymore. In these circumstances, they should investigate the differences between legal separation and divorce.
Divorce
Parties often choose to file for divorce, also known as dissolution of marriage, when they are certain they want to legally end their marriage. In a divorce case, a court will decree that no valid marriage exists and that the parties are legally single. The court will also make judgments regarding child custody, division of property, and spousal and child support.
Legal Separation
A legal separation is a formal recognition that a couple live apart. As in a legal decree of divorce, it sets forth conditions regarding spousal support and property division. If the separated couple has children, the order will include the terms of child support, custody and visitation.
Permanence
Divorce permanently ends the marriage, and the former spouses are free to remarry. Conversely, a legal separation does not terminate the marriage, and the parties may not remarry. Spouses often choose this option when they believe they might reunite. Some states will not grant a divorce until a couple have completed a period of separation.
Financial Considerations
After a couple legally separate, any property they acquire is considered separate and not part of their marital or community property. A divorce involves the same rule, but further results in a permanent division of all marital assets, with the goal of fairness regarding the value of what each brought into the marriage, including child care and housekeeping. The courts also try to divide property in a way that allows both to be financially independent.
When choosing between divorce and legal separation, couples should also consider that legal separation permits them to continue to file their income taxes jointly, and may allow them to remain on the same family health insurance plan.
Religious Considerations
Some choose legal separation over divorce because their religion requires a decision by a religious tribunal before a couple may formalize the process. In these cases, a legal separation provides for spousal support, as well as child support and visitation, while the couple wait for permission to move forward with a divorce through the legal system.
