Legal separation looks a lot like divorce. During the process, you and your spouse determine who gets the kids, the house, the dog and all your other jointly owned property. In fact the only real difference is that after a legal separation, you're still technically married (and can't get remarried). The benefits of legal separation are largely a combination of getting the force of law behind the terms of your separation while retaining the legal benefits of marriage.
Possible Reconciliation
If neither you or your spouse is in the position to get remarried in the near term, legal separation stops just short of terminating your marriage. It therefore makes it somewhat more possible for you and your spouse to reconcile and return to your married life. Some states, like Ohio, allow a spouse who receives notice of a legal separation to counterclaim for divorce. In such settings entering into legal separation is often ineffective as a means of preserving the marriage.
Avoiding Waiting Period
Some states, like California, impose a mandatory waiting period from the time of filing for divorce until the divorce can be finalized. But there is no such waiting period for separations. Thus, in at least some states, legal separation is used to enshrine and effectuate the terms of an eventual divorce. When the mandatory waiting period is over, either spouse can then file to convert the separation into a full dissolution of marriage.
Maintenance
Physical or trial separation occurs when you and your spouse cease cohabitation. Simple trial separation does not entitle either spouse to separate maintenance, roughly the equivalent of alimony. But if you would be entitled to receive alimony in a divorce, legal separation gives you the opportunity to receive court-ordered maintenance payments. In awarding maintenance, most state courts consider the length of the marriage, the contributions of each party and each spouse's earning potential compared to the lifestyle enjoyed during the marriage, among other factors. Similar factors are considered when awarding child support, which is also determined during the legal separation process.
Tax Benefits
Because legal separation does not terminate a marriage, you and your spouse can continue to file your income taxes under your married status. This may provide some tax benefit to one or both spouses. In other cases, the division of property and debts can convey a tax deduction to one of the spouses. The tax ramifications of separation can be complex. Consult with a tax professional.
Insurance and Benefits
A common reason why spouses hang on in legal separation instead of divorce is to maintain access to insurance and retirement benefits. By remaining married, even if only on paper, you and your spouse may remain covered by each other's employer-based health insurance. Similarly, your interest in a spouse's social security benefits (and vice versa) vests after 10 years even if you are subsequently divorced. Providing for a spouse's insurance or retirement can be a part of negotiated separation terms.
Religion and Morals
A less common reason for legal separation is religious or moral beliefs. In some cultures and religions, divorce is viewed as taboo or is strongly discouraged. If you're dealing with these feelings, legal separation provides a practical way to avoid the social consequences of divorce while separating your legal and financial rights and obligations from those of your spouse.
Indemnification
Part of the legal separation process is division of property. After the separation, there is no jointly owned marital property. Unless you include such terms in your separation agreement, there is no responsibility for you to keep up or maintain assets for the benefit of your spouse after the separation. Violation of the agreement can be enforced by a court-issued injunction obtained by the aggrieved party.
However, legal separation does not terminate liability for marital debts as against the creditor. In the separation agreement you and your spouse can agree to indemnify each other with regard to specific debts for which you agree to allocate responsibility, but the creditor can seek payment from either of you regardless. If the creditor gets repayment from you on a debt for which you were indemnified by your spouse, your spouse must then reimburse you for your payment. But to prevent this complication arising, debts are usually repaid at the time of separation through liquidation of marital property or payment by one spouse offset in the division of property, according to Divorceinfo.com.
